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ESTATE COUMEft^ 

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PROCEEDINGS 



Railroad Attorneys' Conference , 



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IN 



Atlantic City, N. J., July 13, 14, 15, 1908 



CONCERNING THE 



Employers' Liability Act 

Approved April 22, 1908, and other Acts of Congress 
affecting the interests of 

Interstate Railroad Carriers 



LOUISVILLE, KY 
1908 






EEPORT OF CONFERENCE OF COUNSEL FOR 
RAILROAD COMPANIES, HELD AT THE MARL- 
BOROUGH-BLENHEIM, ATLANTIC CITY, N. J., 
ON JULY 13-14-15, 1908. 



The roll of those present at the Conference was as 
follows : 

P. H. Bbewsteb, Esq., General Counsel, Atlanta & 
West Point Railroad Company, Atlanta, Ga. 

Clyde Beown, Esq., General Solicitor, New York Cen- 
tral Lines, Grand Central Station, New York City. 

Geoege F. Bbownell, Esq., Vice-President and Gen- 
eral Solicitor, Erie Railroad Company, 50 Church Street, 
New York City. 

J. D. Campbell, Esq., General Solicitor, Philadelphia 
& Reading Railway Company, Reading Terminal Build- 
ing, Philadelphia, Pa. 

Benjamin Cabteb, Esq., Special Counsel, Louisville & 
Nashville Railroad Company and other railroad com- 
panies, Washington, D. C. 

R. J. Caby, Esq., General Attorney, Lake Shore & 
Michigan Southern Railway Company, Chicago, 111. 

Elboy N. Clabk, Esq., General Attorney, Denver & 
Rio Grande System, Denver, Col. 

Alexandeb G. Cochran, Esq., Vice-President and Gen- 
eral Solicitor, Missouri Pacific System, St. Louis, Mo. 

Bryan Gumming, Esq., of General Counsel, Georgia 
Railroad Company, Augusta, Ga. 

J. M. Dickinson, Esq., General Counsel, Illinois Cen- 
tral Railroad Company, Central Station, Chicago, 111. 



Joseph I. Doran, Esq., General Counsel, Norfolk & 
Western Railway Company, 1201 Arcade Bnilding, Phila- 
delphia, Pa. 

John Galvin, Esq., General Attorney for Kentucky, 
Chicago, New Orleans & Texas Pacific Railway Company, 
Cincinnati, 0. 

Alexander Hamilton, Esq., Vice-President and Gen- 
eral Counsel, Atlantic Coast Line Railroad Company, 
Petersburg, Va. 

George P. Harrison, Esq., General Counsel, Western 
Railway of Alabama, Opelika, Ala. 

James P. Helm, Esq., General Counsel, Louisville, 
Henderson & St. Louis Railway Company, Louisville, Ky. 

Alexander P. Humphrey, Esq., General Counsel, 
Southern Railway Company, Louisville, Ky. 

Eppa Htjnton, Jr., Esq., of Counsel for Receivers, 
Seaboard Air Line Railway Company, Richmond, Va. 

George W. Jones, Esq., District Attorney for Ala- 
bama, Louisville & Nashville Railroad Company, Mont- 
gomery, Ala. 

John Bell Keeble, Esq., District Attorney for Middle 
and West Tennessee, Louisville & Nashville Railroad 
Company, Nashville, Tenn. 

E. C. Lindley, Esq., General Attorney, Rock Island 
Lines, Chicago, 111. 

James H. Neville, Esq., General Counsel, Gulf & Ship 
Island Railroad Company, Gulfport, Miss. 

Theodore W. Reath, Esq., General Solicitor, Norfolk 
& Western Railway Company, 1201 Arcade Building, 
Philadelphia, Pa. 

J. C. Rich, Esq., General Solicitor, Mobile, Jackson & 
Kansas City Railroad Company, Mobile, Ala. 

Edward D. Robbins, Esq., Counsel, New York, New 
Haven & Hartford Railroad Company, New Haven, Conn. 



3 

L. Z. Rosser, Esq., General Counsel, Birmingham & 
Atlantic Eailroad Company, Atlanta, Ga. 

J. F. Schaperkotter, Esq., General Solicitor, Lehigh 
Valley Railroad Company, 143 Liberty Street, New York 
City. 

Gregory L. Smith, Esq., District Attorney for Missis- 
sippi and Mobile County, Alabama, Louisville & Nash- 
ville Railroad Company, Mobile, Ala. 

Frederick W. Stevens, Esq., General Solicitor, Pere 
Marquette Railroad Company, Detroit, Mich. 

Henry L. Stone, Esq., General Counsel, Louisville & 
Nashville Railroad Company, Louisville, Ky. 

Edmund F. Trabue, Esq., District Attorney for Ken- 
tucky, Illinois Central Railroad Company, Louisville, Ky. 

John L. Tye, Esq., District Attorney for Georgia, 
Louisville & Nashville Railroad Company, Atlanta, Ga. 

Claude Waller, Esq., General Counsel, Nashville, 
Chattanooga & St. Louis Railway Company, Nashville, 
Tenn. 

Benjamin D. Warfield, Esq., District Attorney for 
Kentucky, Louisville & Nashville Railroad Company, 
Louisville, Ky. 

Legh R. Watts, Esq., General Counsel, Seaboard Air 
Line Railway Company, Portsmouth, Va. 

Henry T. Wickham, Esq., General Counsel, Chesa- 
peake & Ohio Railway Company, Richmond, Va. 

James B. Wright, Esq., District Attorney for East 
Tennessee, Louisville & Nashville Railroad Company, 
Knoxville, Tenn. 



FIRST DAY'S SESSION. 

July 13, 1908. 

The Conference was called to order at 11 o'clock a. m. 

On motion put by Mr. George F. Brownell, Mr. Henry 
L. Stone was chosen as Chairman of the Conference. 

Chairman Stone : I wonld mnch prefer that some one 
else should act in this capacity. There is, however, no 
use of making any captions objection to your action. I 
thank yon for the honor you have conferred upon me. 

We have met for the purpose of discussing recent 
legislation affecting railroad interests, especially the new 
Employers ' Liability Act, the Safety Appliance Acts, and 
what is known as the Hours of Service Act. I believe the 
committee which had this matter in charge has formulated 
some questions looking to a discussion of the important 
features of these three measures, and has a sufficient num- 
ber of copies to supply all those who are present. Mr. 
Brownell can inform us whether those questions have 
been typewritten or put in such form that they can be 
distributed among the members of the Conference. 

If there had been time, it would have been much better 
to have distributed these questions among those who are 
here, so that they might have thought them over before 
they came to this Conference and have posted themselves 
somewhat, and thus been better able to discuss them. But 
that was found to be impracticable, and the members of 
the committee have done the best they could within the 
time they had to perform their duties. 

v I suppose the first thing in order will be the selection 
of some one to act as Secretary of this Conference, so 
that we may be able to keep a record of our proceedings. 

On motion of Mr. Brownell, Mr. G. A. Baumann, of 



Philadelphia, Pa., was chosen as Stenographer and Secre- 
tary. 

Mr. Brownell distributed among the members of the 
conference a typewritten paper reading as follows: 

MEMOBANDUM. 

1. Is the Act nnder consideration void for the 
reason that Congress has not power under the com- 
merce clause of the Constitution to govern the rela- 
tion of master and servant as between an interstate 
carrier and an interstate employe? 

2. Is this question foreclosed by the opinion of 
the Supreme Court in the Employers' Liability cases, 
207 IT. S. 463? 

3. Assuming the affirmative of Question 2, does 
this Act in governing the relation of master and serv- 
ant go beyond the power of Congress in that it regu- 
lates such relation as to intrastate employes by 
making the carrier liable for their negligence to 
interstate employes? 

4. Assuming that the Act is not void for the 
reason above^ suggested, then does the Act violate 
any other clause of the Constitution of the United 
States, e. g., the Fifth Amendment? 

5. Does the Fifth Amendment, in prohibiting 
Congress from depriving any person of property 
without due process of law, embrace a prohibition 
equivalent to that imposed upon the States by the 
Fourteenth Amendment, prohibiting them from de- 
priving a person of property without due process of 
law, and denying any person within its jurisdiction 
the equal protection of the laws? 

6. Are the authorities, which hold void acts of 
the State Legislatures, partial in their operation and 
not founded upon reasonable and just classification, 
applicable to congressional legislation of the same 
character? In other words, if a State is prohibited 
from passing a certain law under the Fourteenth 
Amendment, is Congress prohibited from passing a 
similar law under the Fifth Amendment? 



7. Assuming that the Fifth Amendment is equiv- 
alent or equal to the Fourteenth Amendment, then 
is the present Act void, either because (a) confined 
to railroads, or (b) embracing all interstate employes 
of interstate roads without regard to the character 
of service in which such employes are engaged? 

8. Assuming that to embrace all employes with- 
out regard to the character of service would render 
the Act void, will the court, in lieu of declaring the 
Act void, limit its application to such classes of em- 
ployes as could rightfully be embraced within its 
terms ? 

9. Assuming that such limitation by construc- 
tion is made, what employes can be considered as 
engaged in occupations of such peculiar hazard as 
to justify legislation in their behalf? 

10. When can a railroad be said to be " engaging 
in interstate commerce ' ' within the terms of this Act ? 

11. When can an employe be considered as " em- 
ployed in such commerce" within the terms of the 
Act? 

12. Noting the difference between Section 3 of 
the present Act and Section 2 of the old Act, is there 
any constitutional objection to the adoption by Con- 
gress of the statutory rule in assessing damages in 
suits brought under this Act? 

13. Noting the last clause of Section 3 and the 
whole of Section 4, is there any constitutional objec- 
tion to either of those provisions? 

14. Noting Section 3 of the Act, what statutes 
are therein included — Federal statutes alone, or, in 
addition to those, State statutes and municipal ordi- 
nances ? 

15. Eeferring to the same subject, what statutes 
are included in the description "enacted for the 
safety of employes," e. g., by way of contrast, the 
Safety Appliance Law, on the one hand, and State 
statutes and municipal ordinances limiting the speed 
of trains or requiring signals in approaching high- 
ways, on the other hand? 

16. Referring to Section 5, can Congress pro- 
hibit the making of a contract of employment which 
releases in advance actions for negligence? 



17. Assuming the affirmative of the above, does 
Section 5 forbid a contract under which the employe 
is granted an election, to be exercised after injury, 
between an insurance benefit and a right of action 
for such injury, and which contract makes such elec- 
tion final! 

18. Is this Act exclusive as to rights of action 
within its terms, and does it displace rights of action 
under the common law or under State statutes in all 
cases embraced within its terms, and is there any- 
thing in Section 8 of the Act which determines one 
way or the other this inquiry? 

19. Is the Hours of Service Law constitutional 
and what is its proper construction? 

20. Has the Interstate Commerce Commission 
power to require monthly reports under the Hours 
of Service Law as provided in its circular of March 
3, 1908? 

21. Under the Safety Appliance Law, is the bur- 
den of proof upon the plaintiff to establish negli- 
gence on the part of the carrier, or will proof alone 
of the failure to comply with the provisions of the 
statute make the carrier liable under the same with- 
out regard to any question of diligence upon its part? 

There was subsequently added to the above the follow- 
ing question, which was marked 18% : 

18%. Is the power of Congress to regulate inter- 
state commerce paramount over the right of the 
Legislature of a State to regulate intrastate com- 
merce ? What has Congress to do with the functions 
. of juries of State courts? Does the direction in Sec- 
tion 3 as to the action of the jury indicate that this 
Act is an Act to regulate suits under the statute in 
Federal courts, rather than an Act to establish rules 
of liability binding on State courts? 

Mr. Brownell: It has been suggested that it might 
be well to discuss the first and second topics together as 
one, and the fourth, fifth, and sixth topics together as 
one, and also the seventh and eighth topics together as 
one. 



8 

It has been suggested by several members of the Con- 
ference that in addition to considering questions arising 
under the Employers' Liability Act, there should be an 
opportunity for considering the Hours of Service Law. 
Therefore, two questions were suggested: one in regard 
to the constitutionality and proper construction of the 
Hours of Service Law, and the other, being a question 
which has interested us in the East a great deal of late, 
in regard to the power of the Interstate Commerce Com- 
mission to require the monthly reports called for by their 
circular of March 3, 1908. 

It was also suggested by several members of the Con- 
ference that it would be well to have certain questions in 
connection with the Safety Appliance Law brought up 
for consideration, and the twenty-first topic in this Memo- 
randum, which has been distributed, relates to that law. 

There was also a suggestion that some consideration 
be given to the .recent ruling of the Interstate Commerce 
Commission, with respect to the issuance and use of 
passes, and to questions arising under the Ash Pan Act 
passed by Congress in the closing hours of the last ses- 
sion. 

Mr. Brewster: In regard to the ruling of the Inter- 
state Commerce Commission on the Hours of Service Act, 
I have a letter which has been prepared by the Chairman 
of the General Managers' Association of the Southeast, 
of which I have quite a number of copies, that discusses 
that question and certain other questions that the .General 
Managers thought it important to discuss at this meet- 
ing. 

Mr. Brewster distributed among the members of the 
Conference copies of the letter referred to, reading as 
follows : 



SUBJECT: Federal Hours of Service Law- 
Operators. 

Atlanta, June 30, 1908. 
To all Members: In vour reply please 

refer to File No. 19,140. 
Dear Sirs : 

At our meeting of June 24, 1908, at Atlanta, there 
was a discussion and an exchange of experience be- 
tween the members as to the manner in which they 
had been, or were, conforming to the requirements 
of the Nine Hour Law for Operators. 

The diversity of opinions and practice was such, 
that to enable all to carry out the law uniformly, it 
was concluded to have the Chairman submit the ques- 
tions in writing to the members, that they might have 
their respective counsel, at the meeting in Atlantic 
City on July 13, 1908, to give us an opinion on same. 

The questions are divided into two groups : First, 
the constitutionality of the Act, and second, the con- 
struction of the Act. 

Learned counsel of important lines, who have 
given the subject careful thought, have given the 
opinion that the law is plainly unconstitutional, on 
the ground that it is legislation in behalf of a special 
class. We think this is an appropriate time for our 
counsel to discuss and advise us upon this point. 

However, if the law be constitutional, the con- 
struction of same is of great importance. The mem- 
bers seemed to feel that if the law could be supported 
on the theory of safety to passengers, Congress had 
undertaken to prescribe two classes of offices, which 
are entirely distinct — one, a "continuously operated 
night and day office," and the other a "day office." 
In the first class they prescribe nine hours, and in 
the last case thirteen hours. They do not go so far 
as to prescribe when an office should be of the one 
class, or of the other. 

The members seemed to think that Congress had 
left to them the discretion of establishing, abolish- 
ing, or changing either class of office, but the Com- 
mission, in an Administrative Euling dated March 
16, 1908, has undertaken to prescribe when an office 
"operated continuously night and day" shall not be 



10 

changed. They say: "The purpose of the law and 
of the proviso for nine hours of service may not be 
avoided by erecting offices, stations, depots, or build- 
ings in close proximity to each other and operating 
from one a part of the day while the other is closed, 
and vice versa. The statute is remedial in its intent 
and must have a broad construction so that the pur- 
pose of the Congress may not be defeated." 

The head of the Order of Railway Telegraphers, 
before the Commission, more or less made it patent 
that the real object of the law was to create more 
positions for operators. If this can be established it 
seems to be admitted that the Act is "class legisla- 
tion. ' ' It seemed to be the opinion of members that 
if the Commission, in the administration of the Act, 
considered the "purpose" of Congress to have been 
in the interest of the operators, they are logically 
correct in prescribing that under certain conditions 
"night and day" offices shall not be superseded by 
"day" offices. 

However, upon the theory of safety to passengers 
in interstate travel, Congress has seen fit to recognize 
two kinds of offices, and says what must be done in 
the case of each kind. The members did not seem to 
feel that the Commission was invested by the Act 
with authority to prescribe to the carriers when they 
should, and when they should not, establish, abolish 
or change an office, but only regulated the offices as 
and when established. 

By inference, and in actual practice, the Commis- 
sion does not disapprove of two old, or heretofore 
established, offices being changed, and when it draws 
the line at new offices, in "close proximity," it seems 
to be inconsistent. Logically, the members seemed 
to think an "avoidance" in the sense as used by the 
Commission, was constituted as much by the change 
of two heretofore established "continuously operated 
night and day" offices to two "day" offices in close 
proximity, as by the change of one "continuously 
operated night and day" office to two "day" offices, 
in close proximity. 

No line in this territory seems to be operating the 
plan, but it was stated that some lines elsewhere were 



II 

simply closing their night and day offices for one 
hour, to break the continuity. For instance, one 
operator would be on duty eleven hours, the office 
would be closed one hour, and the second operator 
would be on duty twelve hours. The members 
seemed to think that this was a technical evasion, and 
if the law was sound, on the theory of safety to pas- 
sengers, Congress had decreed that there should be 
two classes, and by simply breaking the continuity, 
the office was not changed from a night and day office 
to a day office — in other words, there was no real or 
actual change. 

The Act provides that no operator, train dis- 
patcher, or other employe who by the use of the tele- 
graph or telephone dispatches reports, etc., "shall 
be required or permitted to be or remain on duty for 
a longer period," etc., "in all towers, offices, places, 
and stations. ' ' One line construed this to mean that 
operators should not be on " telegraphic ' ' duty more 
than the prescribed time, and at their night and day 
offices they had two operators of nine-hour tricks, 
and the agent acted as operator for six hours, and 
performed his agency duties for another six hours. 
The Commission criticised this arrangement, and it 
was discontinued, at a considerable increase in ex- 
penses. However, this line has lately learned that 
another road, perhaps the Hocking Valley, has had a 
similar experience, but disputed the contention of the 
Commission, on the ground that after the expiration 
of the time prescribed by law, the employe was at 
liberty to engage his services and time otherwise, as 
he might see fit. For instance, after his nine-hour 
trick, an operator might keep books for a commercial 
house ; therefore, the carrier might as well and could 
employ the operator in work other than telegraphic 
service, after the prescribed nine hours. This line, 
while without the definite facts, understood the Hock- 
ing Valley had made good its contention. 

As we understood the discussion, the foregoing 
constituted the questions at issue, and we would sug- 
gest that each member transmit to his counsel a copy 
of this letter, which is sent you in duplicate, and dis- 
cuss the matter in detail; and submit any specific 



12 

questions, with regard to their individual practice, 
as they may care to know. 

We would suggest, among such other points as 
may occur to you, the following questions of counsel : 

First — Is the Act constitutional! 

Second — Can the Interstate Commerce Commis- 
sion construe and interpret the law beyond its plain 
wording, and the meaning of the words used? 

Third — Will it be a legal compliance with the law 
to establish a new office in the same building, or with- 
in one hundred yards of an old office, in order that 
the old office which has been operated continuously 
night and day heretofore, may be converted into a 
"day" office, operated from 6:00 a. m. to 6:00 p. m., 
and that the new office may be operated from 6:00 
p. m. to 6:00 A. M? 

Fourth — May two old offices, in the same building, 
or within one hundred yards, one of which has been 
operated continuously night and day, and the other 
only during the day, be changed to two "day" offices, 
one being operated twelve hours, while the other is 
closed, and vice versa? 

Fifth — If the ruling of the Commission be deemed 
sound that a new office may not be established in 
"close proximity" to an old office, in order to enable 
the latter to be converted into a "day" office, what 
constitutes ' * close proximity " ? If one night and day 
office has heretofore handled the telegraphic work for 
a territory including a passing track one-half mile 
long, can a new office be established at the other end 
of track, and enable the original office to be con- 
verted into a "day" office, one office working twelve 
hours, while the other is closed, and vice versa? 

Sixth — Will the closing of an office heretofore 
1 ' continuously operated night and day," for the 
space of one hour, break the continuity, and convert 
same into two "day" offices, within the meaning of 
the law? 

Seventh — May an operator at a continuously 
operated night and day office, after being on duty the 
prescribed nine hours, be employed during the same 
twenty-four hour period in clerical or other work? 
Yours truly, 

Chaeles A. Wickeesham, 

Chairman. 



13 

Chairman Stone: We are ready to hear any discus- 
sion from any member present, concerning these ques- 
tions set out in this memorandum presented by Mr. 
Brownell in behalf of the committee that has had these 
matters in charge. I assume the best way of taking up 
the discussion relating to these questions would be to con- 
sider them in their numerical order, it being understood 
that Questions 1 and 2 shall be discussed together, as they 
are so intimately connected that they can not well be 
separated. 

I would like to inquire if the members present have 
copies of the new Employers' Liability Act. I have one 
or two copies, but not enough to distribute. 

Mr. Neville: I have a suggestion to offer, which I 
think is a wise one. As a number of the members of the 
Conference have not got the Act with them or before 
them, I think it would be a good idea to have the Secre- 
tary read the new Employers' Liability Act. 

Chairman Stone : I will save him that trouble. 

The Chairman then read the Employers' Liability 
Act, approved April 22, 1908, as follows : 

An Act Relating to the Liability of Common Carriers 
by Railroad to Their Employes in Certain Cases. 

Be it enacted by the Senate and House of Repre- 
sentatives of the United States of America in Con- 
gress assembled, That every common carrier by rail- 
road while engaging in commerce between any of the 
several States or Territories, or between any of the 
States and Territories, or between the District of 
Columbia and any of the States or Territories, or 
between the District of Columbia or any of the States 
or Territories and any foreign nation or nations, 
shall be liable in damages to any person suffering 
injury while he is employed by such carrier in such 
commerce, or, in case of the death of such employee, 
to his or her personal representative, for the benefit 



H 

of the surviving widow or husband and children of 
such employee; and, if none, then of such employee's 
parents; and, if none, then of the next of kin de- 
pendent upon such employee, for such injury or 
death resulting in whole or in part from the negli- 
gence of any of the officers, agents, or employees of 
such carrier, or by reason of any defect or insuffi- 
ciency, due to its negligence, in its cars, engines, 
appliances, machinery, track, roadbed, works, boats, 
wharves, or other equipment. 

Sec. 2. That every common carrier by railroad in 
the territories, the District of Columbia, the Panama 
Canal Zone, or other possessions of the United States 
shall be liable in damages to any person suffering 
injury while he is employed by such carrier in any of 
said jurisdictions, or, in case of the death of such 
employee, to his or her personal representative for 
the benefit of the surviving widow or husband and 
children of such employee ; and, if none, then of such 
employee's parents; and, if none, then of the next 
of kin dependent upon such employee, for such injury 
or death resulting in whole or in part from the negli- 
gence of any of the officers, agents, or employees of 
such carrier, or by reason of any defect or insuffi- 
ciency, due to its negligence, in its cars, engines, ap- 
pliances, machinery, track, roadbed, works, boats, 
wharves, or other equipment. 

Sec. 3. That in all actions hereafter brought 
against any such common carrier by railroad under 
or by virtue of any of the provisions of this Act to re- 
cover damages for personal injuries to an employee, 
or where such injuries have resulted in his death, 
the fact that the employee may have been guilty of 
contributory negligence shall not bar a recovery, but 
the damages shall be diminished by the jury in pro- 
portion to the amount of negligence attributable to 
such employee: Provided, That no such employee 
who may be injured or killed shall be held to have 
been guilty of contributory negligence in any case 
where the violation by such common carrier of any 
statute enacted for the safety of employees contrib- 
uted to the injury or death of such employee. 



l 5 

Sec 4. That in any action brought against any 
common carrier under or by virtue of any of the 
provisions of this Act to recover damages for in- 
juries to, or death of, any of its employees, such em- 
ployee shall not be held to have assumed the risks of 
his employment in any case where the violation by 
such common carrier of any statute enacted for the 
safety of employees contributed to the injury or 
death of such employee. 

Sec. 5. That any contract, rule, regulation, or 
device whatsoever, the purpose or intent of which 
shall be to enable any common carrier to exempt it- 
self from any liability created by this Act, shall to 
that extent be void: Provided, That in any action 
brought against any such common carrier under or 
by virtue of any of the provisions of this Act, such 
common carrier may set off therein any sum it has 
contributed or paid to any insurance, relief benefit, 
or indemnity that may have been paid to the injured 
employee or the person entitled thereto on account of 
the injury or death for which said action was brought. 

Sec. 6. That no action shall be maintained un- 
der this Act unless commenced within two years from 
the day the cause of action accrued. 

Sec 7. That the term "common carrier," as 
used in this Act, shall include the receiver or receiv- 
ers or other persons or corporations charged with 
the duty of the management and operation of the 
business of a common carrier. 

Sec 8. That nothing in this Act shall be held to 
limit the duty or liability of common carriers or to 
impair the rights of their employees under any other 
act or acts of Congress or to affect the prosecution 
of any pending proceeding or right of action under 
the Act of Congress, entitled, "An Act relating to 
liability of common carriers in the District of Colum- 
bia and territories and to common carriers engaged 
in commerce between the States and between the 
States and foreign nations to their employees,' ' ap- 
proved June eleventh, nineteen hundred and six. 

Approved, April 22, 1908. 



i6 

Mr. Humphrey : As I had something to do with fram- 
ing these questions in New York the other day, I think, 
perhaps, it might be well for me, even though it might 
take a little time, to run hastily through all these ques- 
tions, with the view of outlining what we thought would 
be the profitable manner of discussing this Act and its 
various provisions. 

In framing these questions we tried to point out all 
of the difficulties in construction and also tried to point 
out what reasons there might be for holding the Act 
void in whole or in part, or what reasons there might 
be in limiting its broad language and how far that limi- 
tation should go. 

The first two questions are these : 

1. Is the Act under consideration void for the 
reason that Congress has not power under the com- 
merce clause of the Constitution to govern the rela- 
tion of master and servant as between an interstate 
carrier and an interstate employe? 

2. Is this question foreclosed by the opinion of 
the Supreme Court in the Employers' Liability Cases, 
207 U. S. 4631 

Can Congress, under the commerce clause of the Con- 
stitution, govern the relation of master and servant as 
between an interstate carrier and an interstate employe? 

As you all know, the Supreme Court of the United 
States when they came to consider this Act divided. Mr. 
Justice White and Mr. Justice Day held that the Act 
was void because it included within its terms the relation 
of master and servant as between an interstate carrier 
and an intrastate employe ; that it regulated the relation 
of master and servant whether the interstate carrier was 
at the time of the accident employed in interstate com- 
merce or in intrastate commerce. Mr. Justice White and 



17 

Mr. J ustice Day held the Act void because it went beyond 
the power of Congress in that respect. The Chief Jus- 
tice, Mr. Justice Peckham, and Mr. Justice Brewer de- 
clined to express any opinion as to what was the power of 
Congress in regulating the relation of master and servant 
as between an interstate carrier and an interstate em- 
ploye, and held the Act void because it went beyond that. 
Mr. Justice Moody held that the Act, properly construed, 
applied only to the relation between the interstate carrier 
and the interstate employe. Mr. Justice Harlan and Mr. 
Justice McKenna did not concur, in terms, in the opinion 
of Mr. Justice Moody, but confined themselves to holding 
that it was competent for Congress to regulate the rela- 
tion of master and servant as between an interstate car- 
rier and an interstate employe, and that the Act should 
be construed as doing only that thing. Mr. Justice 
Holmes expressed the same views in a separate opinion. 

Mr. Justice White and Mr. Justice Day stated that 
they conceived it to be the duty of the court to de- 
cide now whether it was competent for Congress to pass 
an act which would be limited to governing the relation 
of master and servant as between an interstate carrier 
and an interstate employe, and held that Congress did 
have that power. In that determination Mr. Justice Har- 
lan, Mr. Justice McKenna, Mr. Justice Moody, and Mr. 
Justice Holmes agreed. 

The other three justices, the Chief Justice, Mr. Jus- 
tice Peckham, and Mr. Justice Brewer, declined to ex- 
press any opinion on that point. 

As thus stated, it would seem that the Supreme Court, 
by a vote of six to three, has positively determined the 
question that the relation of master and servant as be- 
tween an interstate carrier and an interstate employe 
can be governed by Congress under the commerce clause 



i8 

of the Constitution, three justices expressing no opinion 
on the subject. 

As Mr. Justice White and Mr. Justice Day went out 
of their way to determine this in advance, a most unusual 
course, it would seem that it would be extremely difficult 
to convince them that Congress did not have the power 
which they have thus gone out of their way to say Con- 
gress did have. 

The third question is : 

3. Assuming the affirmative of Question 2 (that is, 
assuming the right of Congress, under the commerce 
clause, to determine the relation of master and serv- 
ant as between an interstate carrier and an interstate 
employe is foreclosed by the opinion of the Supreme 
Court in the Employers' Liability case), is this Act 
still inimical to the objection made to the other Act, 
and does it, in attempting to govern the relation of 
master and servant, go beyond the power of Con- 
gress, in that it regulates such relation as to intra- 
state employes, by making the carrier liable for their 
negligence to interstate employes! 

It would seem quite clear from the reading of the 
Act that if an employe of an interstate carrier, while en- 
gaged in interstate commerce, is injured by the negligence 
of any of the servants of the carrier, the carrier is liable. 
We may assume the case of a collision between an in- 
terstate train and an intrastate train, both belonging to a 
carrier engaged in interstate commerce, and we may as- 
sume that that collision grows out of the negligence of the 
engineer of the intrastate train solely. Now, under this 
Act, the employes of the interstate train would have a 
right of action against the carrier for the negligence of 
the employes of the intrastate train. The doubt on this 
question arises from certain language used by Mr. Jus- 
tice White in his opinion. Mr. Justice White, in discuss- 



19 

ing the second proposition, namely, whether, assuming 
that Congress can regulate the relation of master and 
servant under some circumstances, the Act under consid- 
eration went beyond that power. After stating that car- 
riers engaged in interstate commerce may also be en- 
gaged, and commonly are engaged, in intrastate com- 
merce, he goes on to show that the statute is addressed 
to the individuals or corporations which are engaged 
in interstate commerce and is not confined solely to regu- 
lating their interstate business; that is, it regulates the 
persons because they engage in interstate commerce and 
does not alone regulate the business of interstate com- 
merce. Now, I read a few lines (pages 497-8) : 

And the conclusion thus stated, which flows from 
the text of the Act concerning the individuals or cor- 
porations to which it is made to apply, is further 
demonstrated by a consideration of the text of the 
statute denning the servants to whom it relates. 

Thus the liability of a common carrier is declared 
to be in favor of ' i any of its employes. ' ' As the word 
"any" is unqualified, it follows that liability to the 
servant is co-extensive with the business done by 
the employers whom the statute embraces; that is, 
it is in favor of any of the employes of all carriers 
who engage in interstate commerce. This also is the 
rule as to the one who otherwise would be a fellow- 
servant, by whose negligence the injury or death may 
have been occasioned, since it is provided that the 
right to recover on the part of any servant will exist, 
although the injury for which the carrier is to be 
held resulted from "the negligence of any of its 
officers, agents, or employes." 

Mr. Justice "White points out, in that way, that not 
only under the old Act was a liability imposed on the 
carrier for injury to any of its employes, but a liability 
was also imposed on the carrier by reason of an injury 
suffered through the negligence of any of its servants. 



20 

While the present Act confines the right of action to em- 
ployes ' ' employed in such commerce, ' ' it does not confine 
the right of such employes by reason of the negligence of 
employes engaged in such commerce, but gives the inter- 
state employe a right to recover from the carrier, al- 
though the negligence which caused the injury was the 
negligence of an employe engaged solely in intrastate 
commerce. 

Mr. Littlefield, in his opinion upon this Act, which 
was presented to Congress when it was under discussion, 
seems to think that Mr. Justice White regards the two 
factors as equally indispensable to render the Act con- 
stitutional, namely, that the Act shall be in favor only of 
an employe engaged in interstate commerce, on the one 
hand, and it must be directed alone to injuries caused by 
persons engaged in interstate commerce, and if, therefore, 
the person who is injured is, at the time of the injury, 
engaged in intrastate commerce, Congress could not 
allow him to recover, nor, on the other hand, could it 
allow the person injured to recover, even though he might 
at the time be engaged in interstate commerce, if the 
servant whose negligence caused the injury was engaged 
in intrastate commerce; that to give a right of action 
to an intrastate employe undoubtedly governs the rela- 
tion of master and servant in intrastate commerce. And, 
likewise, he says that if a right of action is given for 
the negligence of a servant engaged in intrastate com- 
merce, that is a regulation of the relation between the 
carrier and that servant, and the one is as inimical to the 
constitutionality of the Act as the other. That is the 
basis for the third question. 

Next, the fourth, fifth, and sixth questions are to be 
considered together, and the question that is there pre- 
sented is this : The Supreme Court of the United States, 



21 

as you all know, has from time to time declared void 
State statutes which were partial in their operation and 
not founded upon reasonable and just classification as 
inimical to the Fourteenth Amendment. 

The Fourteenth Amendment, of course, is addressed 
to State action. It reads: 

Nor shall any State deprive any person of life, 
liberty, or property without due process of law, nor 
deny to any person within its jurisdiction the equal 
protection of the laws. 

I think that the leading case on that subject is Con- 
nelly v. Sewer Pipe Company, in which the Supreme 
Court of the United States declared the Anti-trust Law of 
Illinois unconstitutional, because while in its first two or 
three sections it prohibited any combinations in restraint 
of trade generally, yet by a subsequent section (the 8th, 
I think) it provided that the Act should not apply to per- 
sons dealing in agricultural products, nor in live stock. 

The Fifth Amendment, of course, is addressed to Con- 
gress. The Fifth Amendment does not contain the lan- 
guage "nor deny to any person within its jurisdiction 
the equal protection of the laws." A close reading of 
Connelly v. Sewer Pipe Company will show that the opin- 
ion of the court, delivered by Mr. Justice Harlan, was 
based upon the last clause of the Fourteenth Amendment : 
"nor deny to any person within its jurisdiction the equal 
protection of the laws." He waives the question as to 
whether it would have been void as depriving the person 
of property without due process of law. 

So far as we know, there has been no case in which 
it has been decided that the Fifth Amendment, as ad- 
dressed to Congress, and the Fourteenth Amendment, 
as addressed to the States, are equal or equivalent. If 
the Fifth Amendment is equal or equivalent to the Four- 



22 

teenth Amendment (in other words, if the language "nor 
deny to any person within its jurisdiction" is not the 
only ground upon which it can be asserted that where 
a State legislature passes a law, it is void when partial 
in its operation and not founded upon reasonable and 
just classification, but that the same conclusion can be 
drawn from the other language of the Fourteenth Amend- 
ment, "nor shall any State deprive any person of life, 
liberty, or property"), then I say that the authorities 
holding State legislation inimical to the Constitution, be- 
cause partial in its operation and not founded upon rea- 
sonable and just classification, apply to congressional 
legislation as well as to State legislation. If, upon the 
contrary, the doctrine is predicated upon, and supported 
by, the last clause alone in the Fourteenth Amendment, 
then it is obvious that the Fifth Amendment would not 
protect from class legislation. 

I know of no exact authority on that point. Mr. 
Justice Field, in delivering at the Circuit his opinion in 
the San Mateo Tax case seemed to say that the Fifth 
Amendment and the Fourteenth Amendment were equiva- 
lent, although, as that was a case of State legislation, 
any expression on his part would be dictum. 

When we examined this question in relation to the 
former Act, a quite diligent search was made for author- 
ity upon this express point, but none was found, and if 
any exist, I do not know of it. I know of no case where 
an Act passed by Congress has been held void because 
partial in its operation and not founded upon reasonable 
and just classification. On the contrary, I know of no 
case in which it has been denied that the same doctrine 
would be applicable to congressional legislation as to 
State legislation. It would seem to be quite remarkable, 
however, that an amendment should be passed to the 



2 3 

Constitution of the United States to prohibit a State 
from passing a law which Congress could pass, on the 
same subject, one might say. In other words, it would 
seem to be quite remarkable that the Constitution of the 
United States would be amended so as to deny to the 
States the right to enact partial legislation, legislation 
not founded upon reasonable and just classification, and 
at the same time allow to Congress the right to enact 
such legislation. That would put the Constitution of the 
United States in this position: that the idea of partial 
legislation and legislation not founded upon reasonable 
and just classification is so inimical to our notions of 
common justice that it is prohibited to the States, but 
that, being so inimical to our notions of common justice, 
it is still allowed to Congress. I have always had a view 
that there would be no such distinction made between the 
Fifth Amendment and the Fourteenth Amendment, and 
that the authorities which would hold void acts of State 
legislatures, partial in their operation and not founded 
upon reasonable and just classification, would be applied 
to congressional legislation in the same way. 
The seventh question is: 

7. Assuming that the Fifth Amendment is 
equivalent or equal to the Fourteenth Amendment, 
then is the present Act void, either because (a) con- 
fined to railroads or (b) embracing all interstate em- 
ployes of interstate roads without regard to the char- 
acter of service in which such employes are engaged? 

The present Act is confined to railroads. Is it com- 
petent for Congress, in passing an Act of this character, 
to classify carriers, putting railroads in one class by 
themselves and leaving that large body of transportation 
by navigation outside of the Act? Is that a reasonable 
and just classification? 



2 4 

I am free to 3ay that in my view the Act can not be 
attacked as being partial in its operation by reason of the 
fact that it is confined to railroads and is not extended 
to transportation by water. I think that for two reasons. 
In the first place, from the very beginning of our gov- 
ernment, act after act has been passed, regulating navi- 
gation, regulating the relation of ship-owners to shippers, 
ship-owners to their employes, sailors, and providing for 
various safety devices. Legislation has been passed 
which is applicable alone to transportation by water. 
More than that, Congress has enacted, as to transporta- 
tion by water, a limited liability Act so that if there is 
an accident growing out of the negligence of the employes 
on board of a ship, it is competent for the owners of the 
ship to surrender the vessel and be acquit of all further 
personal responsibility. It has been held by the Supreme 
Court of the United States that that is valid legislation, 
even though the steamer was confined in its navigation 
to points in the same State; in other words, engaged ex- 
clusively in intrastate commerce. In my judgment, all 
the laws in regard to navigation can be founded upon 
that clause in the Constitution which gives to the courts 
exclusive jurisdiction over admiralty and maritime causes, 
and that Congress has the right to deal with maritime 
jurisprudence as a jurisprudence separate and apart from 
other jurisprudence. That must of necessity be the case, 
because the Congress of the United States has the right 
to regulate commerce, not only between the States, but 
also between the United States and foreign nations. They 
must have this authority to deal with all maritime juris- 
prudence so as to control our vessels on the high seas and 
to deal with questions that arise as other nations deal 
with them. And that has been done by agreement with 
other nations. Certain signals have been agreed on be- 



25 

tween vessels on the high seas and there have been in- 
numerable regulations. So that, in my judgment, confin- 
ing this Act to railroads is a reasonable and just classifi- 
cation and one not partial in its operation. 

Now, coming to the second portion of the question, 
*' embracing all interstate employes of interstate roads 
without regard to the character of service in which such 
employes are engaged," we meet with quite a different 
question. It is undoubtedly true that there are many 
interstate employes of interstate roads who are engaged 
in a service which is not at all of a hazardous character, 
and there would seem to be no reason why a right of 
action should be given to all interstate employes of in- 
terstate roads, because as to some of them there is ab- 
solutely no occasion to differentiate them from persons 
engaged in other employments. 

We then come to the eighth question, which is as 
follows : 

8. Assuming that to embrace all employes with- 
out regard to the character of service would render 
the Act void, will the court, in lieu of declaring the 
Act void, limit its application to such classes of em- 
ployes as could rightfully be embraced within its 
terms ? 

Now, that may seem to be a rather startling question. 
Here is an Act which is plain on its face. It refers to 
"any" employe. If that Act, as embracing all employes 
without regard to the character of their service, is re- 
garded as an Act partial in its operation and not founded 
upon a reasonable and just classification because it in- 
cludes employes who have no hazardous service to per- 
form, it is rather a startling proposition to ask whether 
the court, in lieu of declaring the Act void, will limit its 
application to such classes of employes as could be right- 



26 

fully embraced within its terms. But I do not think the 
question is academic. It is a fact that State courts have 
thus limited State laws, as shown with so much clearness 
and diligence, such patient search of authorities and clear 
statement of law, by Mr. Warfield, whose brief on the 
subject was regarded so highly as to be printed by Mr. 
Littlefield in his remarks on this Act. It is pointed out 
in that brief that in such States as Minnesota, Iowa, 
Indiana, Kansas, and Missouri acts general in their terms 
have by the courts been limited in their operation, the 
courts holding that unless limited in their operation they 
would be unconstitutional and cutting them down to a 
constitutional limit. Holding that while the Act would 
be void under the Fourteenth Amendment, if applied ac- 
cording to its broad terms, yet, to save the Act, the courts 
would (and they have in those States) cut down the Act 
and refused to apply it, except to certain classes of em- 
ployes, such as could be rightfully considered as engaged 
in a service of hazard, the court saying in those cases 
that it is not competent for the State Legislatures, under 
the Fourteenth Amendment, to classify employers, but 
that there must be a classification of employes. In other 
words, that a State Legislature could not say that a par- 
ticular kind of employer should be liable, but could only 
say that employes that were subject to a special hazard 
were entitled to a special protection. 

It would seem to me that, considering the broad lan- 
guage of this Act, we might well go before the Supreme 
Court of the United States and say that legislation in this 
broad language had, by various courts, prior to its enact- 
ment by Congress, been held to be confined, within the 
compass of the general language, to such persons as could 
be rightfully embraced within its terms, namely, persons 
who were subject to an extra hazard, and that as Congress 



27 

adopted this law in its general terms, following the ex- 
ample of various State tribunals which had adopted legis- 
lation like this in similar broad terms, it would be taken 
that Congress, in adopting this legislation, had adopted 
it with the construction that is put upon it by other courts 
which had originally considered and determined it. 
The ninth question is: 

9. Assuming that such limitation by construc- 
tion is made, what employes can be considered as 
engaged in occupations of such peculiar hazard as 
to justify legislation in their behalf? 

By the way, I wish to say that it seems to me that as 
a result of our conference here, there should be followed 
the plan that was followed in Louisville, namely, the 
appointment of a committee or two committees which 
shall make reports on these questions and on such others 
as the body may desire to submit to them, so that they 
can, with deliberation, go into the authorities and can 
print a report somewhat similar in form to this last re- 
port, which I think would be of use to all of us, and par- 
ticularly of use to those who are not present at this dis- 
cussion. I am led to say that particularly in regard to 
this ninth question and certain other questions to which 
I will come in a moment. 

With regard to the ninth question, an examination 
of the authorities will discover a wide difference of opin- 
ion. Speaking broadly, I think it may be said that in 
Indiana, Minnesota and Iowa they have confined the ap- 
plication of such acts as this to employes engaged in the 
operation of trains, trainmen, as the operation of a train 
is a peculiar hazard. On the other hand, the authorities 
in Kansas and Missouri have so far broadened this class 
as to include in it section-hands, holding that a section- 
hand is engaged in the operation of a train, because he 



28 

prepares the track for the train. In Georgia a similar 
statute has been held to apply to any employe. My recol- 
lection is that in one case in Georgia they held it would 
apply to a man who was engaged in putting up a chande- 
lier in one of the offices. As I say, these authorities could 
be carefully examined, and all of them, I think, could be 
stated in the report, so that we may, all of us, have ex- 
actly what is before us, in an effort to narrow the con- 
struction of this Act. 

I now come to Questions 10 and 11, which read as 
follows : 

10. When can a railroad be said to be "engaging 
in interstate commerce ' ' within the terms of the Act ? 

11. When can an employe be considered as ' ' em- 
ployed in such commerce " within the terms of the 
Act! 

Here, again, there is a considerable work necessary 
to be done in examining the authorities and finding out 
when a railroad can be said to be engaged in interstate 
commerce and when an employe can be said to be en- 
gaged in such commerce within the terms of the Act. 
That matter, of course, is first discussed in the Interstate 
Commerce Law, it being held that an entirely intrastate 
road in Georgia was engaged in interstate commerce when 
the owner of it issued a through bill of lading and made 
a through rate. But the question is : did that make every 
operation of that road an "engaging in interstate com- 
merce?" In other words, it might engage in interstate 
commerce, on the one hand, and also undoubtedly in intra- 
state commerce, on the other hand. This Act says, ' ' That 
every common carrier by railroad while engaging in 
commerce between any of the several States. ' ' The ques- 
tion here is as to a railroad engaging in commerce. I do 
not think that is of special importance, because the stat- 



29 

ute goes on to say, " shall be liable in damages to any 
person suffering injury while he is employed by such 
carrier in such commerce. " It is not, therefore, very 
material to determine whether the common carrier is en- 
gaging in such commerce, because the common carrier is 
not liable in damages unless the person suffering injury, 
suffered that injury while he was employed by such car- 
rier in such commerce. In other words, at the very time 
of the injury the carrier must necessarily be engaged in 
interstate commerce, because we can not conceive of the 
employe being engaged in interstate commerce at the time 
he was injured without the carrier being at the same time 
engaged in interstate commerce. So, at last, the question 
is: when is the employe to be considered as engaged in 
such commerce within the terms of the Act? 

We all know what a broad application has been made 
of the Safety Appliance Act, particularly in the decision 
of the Eighth Circuit, where it was held that a narrow 
guage road in Colorado was engaged in interstate com- 
merce and therefore liable to the penalties denounced by 
the Safety Appliance Act, because it was shown there were 
two or three express packages on the express car, which 
had had their origin at Omaha and were bound to some 
point in Colorado, and were taken off at Denver and 
taken on this narrow guage road and carried to destina- 
tion. The Interstate Commerce Commission have deliv- 
ered an important 'opinion in regard to a switching road 
at Kansas City. It is impossible, we know, for any rail- 
road in this country not to be engaged in interstate com- 
merce. They are all engaged in interstate commerce. 
What now is going to be the' test! Will the fact that at 
the time of an accident occurring to a train there is on 
board the train a passenger on an interstate journey, 
or in the train a car on an interstate journey, or in a car 



30 

in the train packages of miscellaneous merchandise on 
an interstate journey, determine that an employe who was 
injured was engaged in interstate commerce if he were 
a brakeman or if he were a section-hand? If a train, 
running between two points in the same State and carry- 
ing an interstate passenger or a package of interstate 
freight, runs down a hand-car with a number of section- 
hands on it, the section-hands at the time either going to 
work or returning from it, they having been putting in a 
new rail, or bridge carpenters putting in a new bridge, 
will they be construed as being engaged in interstate 
commerce at that time? 

Along that line I think it is well to call your attention 
to a few words of the opinion of Mr. Justice White, on 
page 145, second column (pages 498-9) : 

The Act then being addressed to all common 
carriers engaged in interstate commerce and impos- 
ing a liability upon them in favor of any of their 
employes, without qualification or restriction as to 
the business in which the carriers or their employes 
may be engaged at the time of the injury, of neces- 
sity includes subjects wholly outside of the power of 
Congress to regulate commerce. Without stopping to 
consider the numerous instances where, although a 
common carrier is engaged in interstate commerce, 
such carrier may in the nature of things also transact 
business not interstate commerce, although such local 
business may indirectly be related to interstate com- 
merce, a few illustrations showing the operation of 
the statute as to matters wholly independent of in- 
terstate commerce will serve to make clear the extent 
of the power which is exerted by the statute. Take 
a railroad engaged in interstate commerce, having 
a purely local branch operated wholly within a State. 
Take again the same road having shops for repairs, 
and it may be for construction work, as well as a 
large accounting and clerical force, and having, it 
may be, storage elevators and warehouses, not to 



suggest besides the possibility of its being engaged 
in other independent enterprises. Take a telegraph 
company engaged in the transmission of interstate 
and local messages. Take an express company en- 
gaged in local as well as interstate business. Take 
a trolley line moving wholly within a State as to a 
large part of its business and yet as to the remainder 
crossing the State line. 

As the Act thus includes many subjects wholly 
beyond the power to regulate commerce and depends 
for its sanction upon that authority, it results that 
the Act is repugnant to the Constitution and can not 
be enforced unless there be merit in the propositions 
advanced to show that the statute may be saved. 

Now, take the last illustration of Mr. Justice White : 

Take a trolley line moving wholly within a State 
as to a large part of its business and yet as to the 
remainder crossing the State line. 

Does he mean to say that if there is on board one of 
those cars a passenger whose destination is beyond the 
State line, that would bring the whole operation of that 
trolley car, throughout its route, within the operation of 
this Act, or does he mean to say that we are bound to 
determine this question along some practical line; that 
we are to consider whether a train is in fact a local train 
or in fact an interstate train? 

Chairman Stone : By the majority of the passengers 
aboard the trolley carl 

Mr. Humphrey: Yes; that would be quite as good 
an answer as anything else. You are certainly confronted 
with these illustrations upon the one side and certain most 
difficult questions to be reconciled upon the other side. 

Exactly how that is to be determined, I confess that, 
without further consideration, I do not know, but as I 
am up to ask you questions and not to answer them, I 



^2 

take great pleasure in passing it back to you. I will 
say that when we were down in Washington considering 
this Act, we prepared certain amendments to it, none of 
which was adopted, by the way, and when we came to 
consider the question as, to what services were peculiarly 
hazardous, we concluded to embrace switchmen within 
the terms of the Act. My idea was to embrace within 
the terms of the Act those engaged in the operation of 
trains — engineers, conductors, and brakemen. When a 
switchman is engaged in interstate commerce is some- 
thing a jury can never tell us, and the Supreme Court 
must necessarily decide. 
The twelfth point is : 

12. Noting the difference between Section 3 of 
the present Act and Section 2 of the old Act, is there 
any constitutional objection to the adoption by Con- 
gress of the statutory rule in assessing damages 
in suits brought under this Act? 

That section is quite different from the old section. 
The section in the old Act determined a rule of liability. 
That rule of liability was examined very thoroughly, and 
with a great deal of skill and clearness, by Mr. Cary, in 
the report that was sent out under the old Act. But you 
will observe that the old Act provides this way : 

Sec. 2. That in all actions hereafter brought 
against any common carriers to recover damages for 
personal injuries to an employe, or where such in- 
juries have resulted in his death, the fact that the 
employe may have been guilty of contributory negli- 
gence shall not bar a recovery, where his contribu- 
tory negligence was slight and that of the employer 
was gross in comparison, but the damages shall be 
diminished by the jury in proportion to the amount 
of negligence attributable to such employe. All ques- 
tions of negligence and contributory negligence shall 
be for the jury. 



33 

That section imposed a rule of liability, because it 
simply provided that in actions brought against common 
carriers the fact that the employe might have been guilty 
of contributory negligence shall not bar recovery (it does 
not stop there) where his contributory negligence was 
slight and that of the employer was gross in comparison, 
but the damages shall be diminished. 

Section 3 of the present Act corresponds to Section 
2 of the old Act, and Section 3 of the present Act reads : 

That in all actions hereafter brought against 
any such common carrier by railroad under or by 
virtue of any of the provisions of this Act to recover 
damages for personal injuries to an employe, or 
where such injuries have resulted in his death, the 
fact that the employe may have been guilty of con- 
tributory negligence shall not bar a recovery, 

it is not as it was formerly where "his contributory negli- 
gence was slight and that of the employer was gross," 
but where there is an injury, "the fact that the employe 
may have been guilty of contributory negligence shall 
not bar a recovery" — 

but the damages shall be diminished by the jury in 
proportion to the amount of negligence attributable 
to such employe. 

Now, the question is: is there any reason why Con- 
gress should not say that in a suit by an interstate em- 
ploye against an interstate carrier for injuries suffered 
while the employe is engaged in interstate commerce his 
contributory neglect shall not bar his action, but that the 
damages shall be diminished by the jury in proportion 
to the amount of negligence attributable to such employe ? 
As far as I am concerned, I know of no reason why Con- 
gress should not have the power to do that. 

Question 13 is as follows: 



34 

13. Noting the last clause of Section 3 and the 
whole of Section 4, is there any constitutional objec- 
tion to either of these provisions? 

The last clause of Section 3 of the new Act reads : 

Provided, That no such employee who may be 
injured or killed shall be held to have been guilty of 
contributory negligence in any case where the viola- 
tion by such common carrier of any statute enacted 
for the safety of employes contributed to the injury 
or death of such employe. 

Section 4 reads: 

Sec. 4. That in any action brought against any 
common carrier under or by virtue of any of the 
provisions of this Act to recover damages for injuries 
to, or the death of, any of its employes, such em- 
ploye shall not be held to have assumed the risks of 
his employment in any case where the violation by 
such common carrier of any statute enacted for the 
safety of employees contributed to the injury or 
death of such employee. 

It will be observed that the effect of this legislation 
is that although the employe may have been guilty of 
contributory neglect, he can still recover, the jury to di- 
minish the damages in proportion to the amount of neg- 
ligence attributable to him or upon some equitable basis ; 
that is, in every case the first clause establishes his right 
to recover, even though he is guilty of contributory neg- 
lect, and makes it the duty of the jury to diminish the 
damages. 

But the last clause of Section 3 goes on to say that 
notwithstanding that contributory neglect, if the neglect 
of the employer was in violation of a statute enacted for 
the safety of the employes, then his contributory neglect 
shall not bar him at all, and in that case, I take it, the 
jury can not diminish the damages, but must give full 
damages. 



35 

So in Section 4 it abolishes the assumption of risk 
where the injury may have resulted from the violation of 
a statute. In that case, again, is not only the contributory 
neglect feature abolished as a defense, but there is also 
taken away from the jury the right to diminish the dam- 
ages ; and in either case where there has been contributory 
neglect and the carrier has violated a statute enacted for 
the safety of employes, or where there has been, or 
would be ordinarily, an assumption of risk if the accident 
comes from a violation of the statute by the carrier and 
that contributed to the injury or death of the employe, 
he can recover full damages. 

The question is whether Congress can do that. If 
there is any reason why they can not. I know of none. 

The last part of Section 3 and the whole of Section 4 
raise a very important question. What is meant by ' ' any 
statute enacted for the safety of employes?" 

There are various statutes. In the first place, Ques- 
tion 14 asks what statutes are here referred to. Does 
it mean Federal statutes or does it mean, also, Federal 
statutes or State statutes? Does it mean State statutes! 
Does it mean statutes passed by the State legislatures! 
And does it mean municipal ordinances! In other words, 
did Congress mean to import into this Act the provisions 
of the various State laws, and possibly municipal ordi- 
nances, which have been enacted or passed for the safety 
of employes, or did they mean simply Federal statutes; 
that is, the Safety Appliance Law! 

The next question is: What is a statute enacted for 
the safety of employes! Question 15 reads: 

15. Referring to the same subject, what statutes 
are included in the description "enacted for the 
safety of employes," e. g., by way of contrast, the 
Safety Appliance Law, on the one hand, and State 



36 

statutes and municipal ordinances limiting the speed 
of trains or requiring signals in approaching high- 
ways, on the other hand? 

The Safety Appliance Law is undoubtedly an Act for 
the safety of employes. It says so in its title. There are 
certain State statutes and municipal ordinances limiting 
the speed of trains and requiring signals in approach- 
ing highways. There are certain State statutes which 
require certain kinds of headlights. 

Now, are those statutes, assuming State statutes are 
to come within the purview of this, to be embraced within 
the definition, "statute enacted for the safety of em- 
ployes, ' ' or are they to be considered as enacted under the 
police power of the State in the government of the rail- 
road in its relation to the public? 

Section 5 provides : 

Sec. 5. That any contract, rule, regulation, or 
device whatsoever, the purpose or intent of which 
shall be to enable any common carrier to exempt it- 
self from any liability created by this Act, shall to 
that extent be void: Provided, That in any action 
brought against any such common carrier under or 
by virtue of any of the provisions of this Act, such 
common carrier may set off therein any sum it has 
contributed or paid to any insurance, relief bene- 
fit, etc. 

Question 16 is this: 

16. Referring to Section 5, can Congress pro- 
hibit the making of a contract of employment which 
releases in advance actions for negligence! 

We all know that the Supreme Court of the United 
States in the Voigt case held that it was not against public 
policy for an employe, in consideration of his employ- 
ment, to release a carrier or the carrier of the carrier, 



37 

as it was in that case, from liability for accidents. They 
held that it was not against public policy. Congress has 
reversed that rule and has said that such a contract as 
this shall be void. As to whether Congress can do this, 
when we come to consider it, I think it would be well for 
us to look at the report of the majority of the Judiciary 
Committee proposing this legislation. In that report they 
cited a great many States in the Union in which such con- 
tracts as this have been held to be void as against public 
policy. They also cited a number of States where there 
have been passed statutes similar to this making such 
contracts as this void, changing what had been either 
decided to be, or assumed to be, the public policy. 

Can Congress do the same thing! The Supreme 
Court of the United States has heretofore decided that 
it was not against public policy. Is there any reason why 
Congress can say that it shall hereafter be against public 
policy? Public policy is undoubtedly a thing that changes 
from time to time. The world moves. Many things now 
are opposed to public policy which were not opposed to 
public policy in former days; many things are now in 
favor of public policy that formerly were opposed to it. 
It would seem to me that Congress could change this rule, 
which is a mere rule of public policy. 

The next question deals with the construction of the 
Act and asks whether that section forbids a contract un- 
der which an employe is granted an election, to be exer- 
cised after injury," between an insurance benefit and a 
right of action for such injury, and which contract makes 
such an election final. 

I see nothing in the Act to prohibit such a contract. 
An employe agrees that after he is injured he may have 
an election to take an insurance benefit or sue for his 
injury. I see nothing in this section which forbids that 



3* 

kind of contract, a contract which gives to the employe 
the election after the injury . If after the injury he elects 
to take an insurance benefit, I do not see why he is not 
as much bound by that as he would be by any compromise 
he would make. It is at last a compromise. The matter 
is presented to the employe and he is asked, "what will 
you do, sue this railroad or take $1,000 insurance bene- 
fit?'' It seems to me it is a compromise in every case 
and there is nothing in this section which takes away 
from the employe the right, after the injury, to exercise 
this right of election. 

Question 18 is as follows: 

18. Is this Act exclusive as to rights of action 
within its terms and does it displace rights of action 
under the common law or under State statutes in all 
cases embraced within its terms and is there anything 
in Section 8 of the Act which determines one way 
or the other this inquiry? 

We all know that, ordinarily, where Congress acts, 
what it does is supposed to be exclusive; it is supposed 
to displace all State statutes along the same lines. There 
are some exceptions to that, we know. The Supreme 
Court has decided two cases, I think, in Western States, 
where some of those States have passed statutes for the 
inspection of cattle or prohibiting cattle being brought 
within the borders of the State within a particular time, 
which were in addition to the acts of Congress on that 
subject. The Supreme Court has held that these acts, 
not being inconsistent with the acts of Congress, but 
being an additional safeguard, can stand with the acts 
of Congress. They are very difficult to reconcile with 
those cases which hold that where Congress enters the 
field it excludes the State. This question depends a 
good deal upon how we punctuate this sentence or how 
we read it. Section eight says : 



39 

Sec. 8. That nothing in this Act shall be held 
to limit the duty or liability of common carriers or 
to impair the rights of their employes under any 
other act or acts of Congress . . . 

Now, then, do the words " under any other act or acts 
of Congress" qualify the first part of that sentence* as 
well as the last part of it! In other words, is the sentence 
to be construed as if it read this way : ' ' That nothing in 
this Act shall be held to limit the duty or liability of com- 
mon carriers under any other act or acts of Congress 
or to impair the rights of their employes under any other 
act or acts of Congress?" Or is it to be read this way: 
1 ' That nothing in this Act shall be held to limit the duty 
or liability of common carriers" — and pause there — 
"or to impair the rights of their employes under any 
other act or acts of Congress?" 

That is a most important question, because in many of 
the States there are rights of action given to the per- 
sonal representatives of employes, which are not given 
here. For instance, in Kentucky, under certain circum- 
stances, the personal representative of a deceased em- 
ploye can maintain a right of action and the recovery 
goes to the creditors of the deceased person; and in our 
report of the old Employers ' Liability Act will be found, 
taken from some book — I have forgotten what — quite 
a table showing the various statutes that are in force in 
some of the States, some of the States authorizing out- 
right a suit by the widow and children, and others al- 
lowing a suit by a personal representative, the recovery 
to go to the creditors of the deceased person — all sorts 
of statutes. 

Let us assume a case where the employe has been 
killed and he leaves no surviving widow or children, and 
he leaves no parents, and he leaves no next of kin de- 



4 o 

pendent on him ; then no suit can be brought by any per- 
sonal representative under this Act. 

Under those circumstances, can a suit be brought un- 
der a State statute, or is this Act exclusive? Upon that 
depends the solution of a great many questions, because, 
though the language of this eighth section is not quite 
the same as the relative language in the corresponding 
section of the old Act, we assumed under the old Act that 
it was exclusive in its terms, and, therefore, where an 
employe sued a carrier engaged in interstate commerce, 
that we could remove the case to the Federal Court ; that 
we could file a petition setting up the fact that the injury 
was properly related to interstate commerce, and, there- 
fore, came under the case of Texas Pacific Eailroad v. 
Cox. 

But if this Act is not exclusive, then very different 
questions will arise. 

Chairman Stone: Have you any reason to change 
the view you expressed concerning the former Act on that 
point, now! 

Mr. Humphrey : No. 

Chairman Stone : You still think it is exclusive ? 

Mr. Humphrey: Yes, I still think this Act is exclu- 
sive. I just want to say, for the sake of information, that 
the latter part of that section, "or to affect the prosecu- 
tion of any pending proceeding or right of action under ' ' 
the old Act, was put in, as we were informed when we 
were in Washington, in case the Supreme Court might, at 
some future time, change its mind and hold that the old 
Act was constitutional, and if it did, any employe who 
would have had a right of action under the old Act, would 
have it saved to him by this last provision. 

Chairman Stone: Isn't the old Act valid so far as 
the Territories are concerned? 



41 

Mr. Humphrey: The old Act? 

Chairman Stone: Yes. 

Mr. Humphrey : I suppose it is. 

Mr. Warfield: Wasn't that included for the purpose 
of saving it for the Territories and the District of Colum- 
bia? 

Mr. Humphrey: I suppose it was. 

Now, those are all the questions on the Employers' 
Liability Act that we have propounded. The others re- 
lating to other Acts are very general in their terms, and 
it does not seem to me to be necessary to restate them. 
I am sorry to have detained you so long. 

Mr. Harrison: Am I to understand you to say that 
you still think it is exclusive ? 

Mr. Humphrey: I still think it is exclusive. 

Mr. Eobbins : I think that probably the best service 
that any of us can perform at this Conference is to sug- 
gest questions that can be later amply considered by the 
committee, with such comments here as anybody may 
choose to make. 

Chairman Stone : I think the suggestion of Mr. Rob- 
bins would be of great service, so that members can 
answer them beforehand. 

Mr. Eobbins : I rise now to ask a question. There is 
one question that is not before us, which I think is inter- 
esting. It is this : Is the power of Congress to regulate 
interstate commerce paramount over the right of the 
Legislature of a State to regulate intrastate commerce? 

May I, without arguing it, illustrate it? There is no 
question, of course, where commerce is determined to be 
interstate commerce and not intrastate commerce, but 
that the power of Congress over that subject is para- 
mount ; but if commerce is intrastate commerce, Congress 
has no power over it whatever — if it is purely intrastate 



42 

commerce. The application of this question arises in the 
cases (which constitute practically nearly all cases) where 
the carrier is engaged at the same moment in interstate 
commerce and in intrastate commerce. Let ns take the 
case of the interference by a State, on the one hand, or 
by Congress on the other, with the stopping of trains at 
certain stations. If the carrier has an express train 
which is evidently, and in the main, for the purposes of 
travel from one State to another State, and perhaps 
through a third State, it would clearly be an interference 
with, and obstruction to, the course of interstate com- 
merce for a State through which that train passed to say 
it must stop at all the local stations along the line. In 
saying that the State can not do that, and that Congress 
could regulate the movement of that train, are we com- 
mitted to the conclusion that the power of Congress would 
be complete and exclusive over all the trains that go from 
one State into another State, or even through a State to 
a third State? 

I have in mind a little railroad which runs through 
one State and ten or fifteen miles into another. There 
was once a great controversy which occupied the courts 
for years and the Legislature for many sessions. A bull- 
headed Englishman, who was the manager of that road, 
got into a controversy with the people of a village along 
the line, over the question whether trains should be 
stopped there. That question was finally regulated by 
State legislation. 

Now, would you have any thought that it was within 
the power of Congress to have precluded the Legislature 
of the State of Connecticut from regulating the stopping 
of any trains at that station if the manager had run all 
his trains through from New Haven, Connecticut, to 
Northampton, Massachusetts — locals, and expresses, as 
well? 



43 

Some counsel appear to be driven into the state ot 
mind where they assent to that conclusion ; but I want to 
say that it seems to me that we need not at present go to 
any such extent as that with relation to the power of Con- 
gress. So far as I can see, the power of the State over 
intrastate commerce is entirely equal to the power of 
Congress over interstate commerce. It is just as sacred. 
Why, then, we may ask, has Congress any power to inter- 
fere with the stopping of through express trains where 
they carry intrastate commerce as well! I think a suffi- 
cient answer is that the State that undertakes, after its 
intrastate commerce has been fully taken care of by local 
trains, to interfere with the stopping of an express train 
and make it stop at other stations, is, under the guise of 
the exercise of its authority over intrastate commerce, 
really, in substance, putting obstructions in the course of 
interstate commerce. That has been a sufficient ground 
for invoking the power of the United States in all cases 
where it has been successfully invoked to prevent inter- 
ference by States with interstate commerce. 

The application of this question is, of course, wide. 
It applies to every statute we have under consideration 
to-day, and to some questions arising under the Inter- 
state Commerce Act. 

Chairman Stone : I understand that you are not of 
the opinion that this new Employers' Liability Act of 
Congress is exclusive; that the State statutes still hold 
the employer liable, and an interstate carrier can still be 
sued by an injured interstate employe. 

Mr. Bobbins : That depends entirely on how we first 
settle this fundamental question. I am simply endeavor- 
ing to state my question. We have, for illustration, a law 
that in cases of death the damages shall not be over 
$5,000. The State of Connecticut says that. Is that law 



44 

superseded by this Act of Congress? Why? The reason 
the answer would be yes must be because Congress is 
legislating regarding interstate commerce and its law on 
that subject is paramount. 

Mr. Brewster: If the road to which you refer is re- 
quired to stop its trains engaged in interstate commerce 
at certain stations, the requirement is an exercise of the 
police power, and not at all an effort to regulate inter- 
state commerce. Otherwise, it would be void, as I under- 
stand was recently held by the Supreme Court in a case 
where the Eailroad Commission of North or South Caro- 
lina by an order sought to require the Atlantic Coast Line 
to stop its through trains at a certain station. 

The right to do so must be found in the police power, 
and not on the theory of regulating interstate commerce 
at all. 

Mr. Bobbins: I do not just know what a lawyer 
means when he talks about police power. 

Mr. Brewster : It is an indefinable power that exists 
in all States. 

Mr. Bobbins : The term ' ' police power, ' ' in the minds 
of many lawyers, means the general powers of govern- 
ment. Of course, the power to regulate intrastate com- 
merce comes under that head. Nearly every power of the 
State does come under that head. How far this power of 
the State goes in regulating the relations of people en- 
gaged in strictly interstate commerce may not be clear, 
but such a power of the State should exist with respect 
to people engaged in intrastate commerce. 

Let me furnish an illustration. If the view which I 
think is commonly taken here is correct, it may be as- 
serted, in logic, that Congress would have the power to 
say to a State, "Your regulation as to a part of your 
citizens engaged in railroading and engaged in intrastate 



45 

commerce, shall no longer be in effect." Yon say, 
' ' Why ' ' f And Congress says, ' ' Because those people are 
engaged in interstate commerce. ' ' But I remind you that 
they are also engaged in intrastate commerce, and in 
many cases the interstate commerce with which they are 
concerned is insignificant in amount or importance, as 
compared with intrastate commerce. Are you willing to 
admit, without putting it up to the Supreme Court, that 
Congress can hereafter say to the Legislature of every 
State, "All your legislation hereafter is void that under- 
takes to govern the relations of your citizens, even though 
those relations are those of being mutually engaged in 
intrastate commerce, if the citizens are also engaged in 
interstate commerce"? I suggest the question whether 
you would not have just as much right to affirm (for here 
you are dealing, not with a conflict between the power of 
Congress and the power of a State over a matter as to 
which the jurisdiction of Congress is clear, but with the 
respective spheres of State and Federal governments as 
to subjects of jurisdiction, which is a very different thing) 
— whether, I say, you would not have just as much right 
to assert that the control over that whole subject is in 
the State, where there is some purely intrastate com- 
merce, although the main business of the employes is 
interstate commerce, as you would have to assert the con- 
trol of the Federal government wherever there is some 
interstate commerce, although the main business of the 
employes is intrastate commerce. 

All that the Supreme Court has said, to my mind, is 
that when Congress is dealing with interstate commerce, 
its regulation of that commerce is paramount over the 
regulation of that subject by the States ; but, I submit, the 
Supreme Court has never said that the power of Congress 
to regulate interstate commerce is paramount over that 



46 

of the Legislature of the State to regulate the affairs of 
its citizens in intrastate commerce. 

I should be glad to see the first case that goes up to 
the Supreme Court of the United States under this Act, 
a case in which the main business of the train in question 
is intrastate commerce and a small part of its business 
interstate commerce. I should like to see whether the 
court will gc to the extreme of holding that Congress has 
the right to regulate all the relations of employer and 
employe with reference to the operation of such a train. 
If they do, see what the consequences will be. They may 
say that railroads are all instrumentalities of interstate 
commerce, even though they lie wholly within one State, 
if they connect with other railroads running out of the 
State, and you can not then deny that any projected rail- 
road may become an instrument of interstate commerce. 
Thus, you may say a power of Congress exists to provide 
for the construction of practically all railroads all over 
the United States by giving powers of eminent domain 
and to regulate the whole subject of railroad operation, 
even down to the case of the little spur of railroad track 
running into a factory that brings goods from that fac- 
tory, part of which may become the subject of interstate 
commerce, and that this power, of Congress (when exer- 
cised in a general way) excludes the power of the State 
to make any further regulations, even as to such a little 
spur of track. 

That is what the logic of it means, and I do not know 
whether the Supreme Court of the United States is will- 
ing to go that far. 

I have here in writing the point I suggested : 

Is the power of Congress to regulate interstate 
commerce paramount over the right of the Legisla- 
ture of a State to regulate intrastate traffic? 



47 

Mr. Helm: I think Judge Bobbins' proposition 
should be added to the questions already enumerated, and 
I request that it be added. 

Chairman Stone: I understand it to be an elabora- 
tion of the question as to whether this legislation by Con- 
gress is exclusive of State legislation on the same subject- 
matter. 

Mr. Bobbins : I want it to go beyond that. I would 
like to have it handed to the committee for their consid- 
eration. 

I also suggest a second question: 

What has Congress to do with the functions of 
juries of State courts! Does the direction in Section 
3 as to the action of the jury indicate that this Act 
is an Act to regulate suits under the statute in the 
Federal courts, rather than an Act to establish rules 
of liability binding on State courts? 

The questions submitted by Mr. Bobbins were subse- 
quently marked and proposed for discussion as Ques- 
tion 18%. 

Mr. Cary : I move we now consider Questions 1 and 2. 

Chairman Stone: We will take that course. Any 
gentleman who desires to be heard on Questions 1 and 2 
will be heard now. They read as follows : 

1. Is the Act under consideration void for the 
reason that Congress has not power under the com- 
merce clause of the Constitution to govern the rela- 
tion of master and servant as between an interstate 
carrier and an interstate employe? 

2. Is this question foreclosed by the opinion of 
the Supreme Court in the Employers ' Liability Cases, 
207 U. S. 463? 

Mr. Hamilton: I have listened with a great deal of 
interest to the presentation of this subject by Mr. Hum- 
phrey. Whilst I think his answers to the questions are 



4 8 

probably correct, yet I would not be disposed to concede 
it in proceeding in this matter in the future. In other 
words, I do not think we can afford at present, with all 
the division and difference among the Justices of the Su- 
preme Court as to whether Congress has the right to 
regulate the relation of master and servant, to concede 
the point and give up the fight now. I think, in that view 
of this matter, that we should still make the argument 
that Congress has no right to make that regulation. I 
understood Judge Humphrey to reach the conclusion that 
we should not raise that question. "While the reasons are 
hard to answer, I do not think we ought to concede that 
and regard it as an ended proposition. 

Mr. Brownell : Judge Humphrey has stated so clear- 
ly and fully the considerations that were discussed by the 
committee in formulating those questions, that it would 
seem an almost useless waste of time to elaborate upon 
them, particularly with respect to the questions covered 
by Topics 1 and 2. It does not follow, however, that those 
who prepared them go quite as far as Judge Humphrey, 
in accepting the constitutionality of this Act and conced- 
ing that the question as to its constitutionality, with re- 
spect to the power of Congress under the interstate corm 
merce clause, is foreclosed by the decision in the Howard 
case. If I should yield to the persuasive argument or 
suggestion of Judge Humphrey in that regard, I should 
feel, like one who is convinced against his will, of the same 
opinion still. 

It seems to me that we must first consider what was 
the question that was decided by the Supreme Court, no 
matter what dicta there may have been or what we may 
think of the individual opinions of the members of the 
court as at present constituted. I take it that the decision 
of the Supreme Court is that the Act, while embracing 



49 

subjects within the authority of Congress in regulating 
commerce, also includes subjects not within its constitu- 
tional power to regulate, and the two are so interblended 
in the Act that they are incapable of separation. Mr. 
Justice White did go out of his way to express, by way 
of dicta (which, of course, are entitled to great considera- 
tion), his views upon some of the questions which he said 
it was not necessary to decide. Two of the three other 
members who concurred in the decision of the point which 
was the point decided, stated that they did not concur in 
the views expressed in the dicta. 

I think that the point which was in the mind of Mr. 
Justice White, so far as the opinion is concerned, outside 
of the point decided, is the proposition which is embraced 
in Question 1, as to whether the Act under consideration 
is void for the reason that Congress has not the power 
under the commerce clause to govern the relation of mas- 
ter and servant between interstate carrier and interstate 
employe. After reading his opinion, it seems to me that 
the question which was uppermost in his mind was 
whether under any circumstances Congress could, as an 
exercise of power under the commerce clause, govern the 
relation of master and servant, rather than the question 
whether Congress had the power in the cases presented 
by an Act such as that under consideration, to determine 
the liability of an employer to an employe. 

Mr. Justice White starts with the statement that the 
case under consideration was where an employe was serv- 
ing as a fireman on a locomotive actually engaged in 
moving an interstate commerce train, and it appears that 
no question of classification was considered, because the 
occupation, in its nature, is one universally conceded to 
be of a hazardous class; and there were several other 
questions discussed here to-day, which were practically 



5° 

excluded from consideration by the nature of the facts in 
that case. 

Now, passing to the considerations which he said it 
was not necessary to decide — 

Chairman Stone : In the last sentence just preceding 
the decision on the first proposition, you will find what 
he says on that subject, beginning with the words, " While 
it may be, if we indulged, for the sake of argument, ' ' etc. 

Mr. Brownell: In the paragraph before that (pages 
494-5) : 

In the first place, it is asserted that there is a 
total want of power in Congress in any conceivable 
aspect to regulate the subject with which the Act 
deals. In the second place, it is insisted the Act is 
void, even although it be conceded, for the sake of 
argument, that some phases of the subject with which 
it is concerned may be within the power of Congress, 
because the Act is confined not to such phases, but 
asserts control over many things not in any event 
within the power to regulate commerce. 

While it may be, if we indulged, for the sake of 
argument, in the hypothesis of limited power upon 
which the second proposition rests, it would result 
that a consideration of the first proposition would be 
unnecessary, because the Act would be found to be 
repugnant to the Constitution. . . . 

The proposition that there is an absolute want of 
power in Congress to enact the statute is based on 
the assumption that as the statute is solely addressed 
to the regulation of the relations of the employer to 
those whom he employs and the relation of those em- 
ployed by him among themselves, it deals with sub- 
jects which can not under any circumstances come 
within the power conferred upon Congress to regu- 
late commerce. 

As it is patent that the Act does regulate the re- 
lation of master and servant in the cases to which it 
applies, it must follow, that the Act is beyond the 
authority of Congress if the proposition just stated 
be well founded. But we may not test the power of 
Congress to regulate commerce solely by abstractly 



.Si 

considering the particular subject to which a regu- 
lation relates, irrespective of whether the regula- 
tion in question is one of interstate commerce. 
. . . We think the unsoundness of the contention, 
that because the Act regulates the relation of master 
and servant, it is unconstitutional, because under no 
circumstances and to no extent can the regulation of 
such subject be within the grant of authority to regu- 
late commerce, is demonstrable. 

Mr. Justice White then proceeds to demonstrate that 
it is unsound to claim that under no circumstances and 
to no extent can the regulation of the relation of master 
and. servant be within the grant of authority to regulate 
commerce. 

Mr. Humphrey: Read the next sentence. 

Mr. Brownell (reading page 495) : 

We say this because we fail to perceive any just 
reason for holding that Congress is without power 
to regulate the relation of master and servant, to the 
extent that regulations adopted by Congress on that 
subject are solely confined to interstate commerce, 
and, therefore,, are within the grant to regulate that 
•commerce or within the authority given to use all 
means appropriate to the exercise of the powers con- 
ferred. To illustrate : Take the case of an interstate 
railway train; that is, a train moving in interstate 
commerce, and the regulation of which, therefore, is, 
in the nature of things, a regulation of such com- 
merce. It can not be said that because a regulation 
adopted by Congress as to such train when so en- 
gaged in interstate commerce deals with the relation 
of the master to the servants operating such train 
or the relations of the servants engaged in such oper- 
ation between themselves, that it is not a regulation 
of interstate commerce. This must be, since to ad- 
mit the authority to regulate such train, and yet to 
say that all regulations which deal with the relation 
of master and servants engaged in its operation are 
invalid for want of power would be but to concede the 
power and then to deny it, or, at all events, to recog- 
nize the power and yet to render it incomplete. 



52 

I suggest that the illustrations, in all cases, are of 
cases where the regulations, while they were regulations 
of the relation of master and servant, were, at the same 
time, regulations of interstate commerce, and had a real 
and substantial relation to such commerce. 

In the latest reference in the Supreme Court to this 
question, in the Adair case, it is recognized and stated 
that the regulations of the relations of master and serv- 
ant could not be made by Congress simply because the 
master or the master and servant were engaged in inter- 
state commerce. (Beading from 208 U. S. page 178) : 

Manifestly, any rule prescribed for the conduct of 
interstate commerce, in order to be within the com- 
petency of Congress under its power to regulate com- 
merce among the States, must have some real or 
substantial relation to or connection with the com- 
merce regulated. 

I do not contend that Congress has no authority under 
any circumstances to regulate the relation of master and 
servant ; but it seems to me to be equally true that Con- 
gress has no power to regulate the relations between 
interstate employer and interstate employe, as a regula- 
tion of commerce, when the rule attempted to be estab- 
lishd, is, in its nature, no regulation of commerce. 

It seems to be unquestioned that Congress has the 
power in the cases used as illustrations of a proper exer- 
cise of the power to regulate interstate commerce, to 
prescribe the qualifications of those employed in inter- 
state commerce, where necessary for the safety of pas- 
sengers. This might justify a proper Hours of Service 
Law and a Safety Appliance Law, and perhaps Congress 
may not only impose a penalty for the violation of such 
an Act in order to conserve and enforce the Act, but may 
also impose liabilities and obligations for a failure to 



53 

obey a rule enacted by Congress for the protection of 
employes, even though the liabilities and obligations are 
in the nature of compensation to those who are injured. 

But I can not see that the particular regulation pro- 
vided here, which is unquestionably a regulation of the 
relation of master and servant, is a regulation of com- 
merce, or that it is to protect employes or penalize the 
employer for failure to perform a duty imposed by Con- 
gress as a proper regulation of interstate commerce. 

There is a statement in the opinion in the Adair case 
which must not be ignored. You will recall that the opin- 
ion in that case was delivered by Mr. Justice Harlan, who 
is one of the two Justices who concurred in the dissent- 
ing opinion in the Howard case, and who stated that they 
were of the opinion that it was within the power of Con- 
gress to prescribe, as between an interstate common car- 
rier and its employe, the rule of liability established by 
the Act of 1906, and who, in delivering the opinion in the 
Adair case, did make this statement which, if it was the 
deliberate opinion of the court, would come a great deal 
closer to recognizing that the court in the Howard case 
meant to go to the whole extent and hold that it was 
proper to regulate the liability of employer to employe. 
In the opinion in the Adair case, on page 178, it is stated : 

In that case (Howard v. Illinois Central Eailroad, 
etc.), the court sustained the authority of Congress, 
under its power to regulate interstate commerce, to 
prescribe the rule of liability, as between interstate 
carriers and its employes in such interstate com- 
merce, in cases of personal injuries received by em- 
ployes while actually engaged in such commerce. 

If this statement of Mr. Justice Harlan, which was 
not dissented from, correctly states what was held in the 
Howard case, it may be that the question under considera- 



54 

tion is foreclosed by that decision. At the same time, I 
can not bnt feel that the Howard case did not decide that, 
and did not foreclose the consideration of the question, 
and that there is a reason for the contention that while 
Congress may have the power, in proper cases, to regu- 
late the relation of master and servant, and even the 
power to define the liability of the employer to the em- 
ploye, when both are engaged in interstate commerce, in 
certain cases, yet such power does not exist unless the 
Act has such a direct relation to interstate commerce that 
the imposing of the liability and the regulation of the 
liability can be shown to be a regulation of commerce. 
At this point a recess was taken until 3 o'clock p. m. 



July 13, 1908, 3 p. m. 

The Conference was called to order by Chairman 
Stone. 

Chairman Stone: When we adjourned for luncheon, 
we were discussing Questions 1 and 2 propounded on this 
memorandum. If there are any further remarks on those 
questions, we will be glad to hear them. If there are not, 
we will proceed to consider the other questions in their 
numerical order. 

I will say for the benefit of the members present, that 
I think it advisable, in order that we may make desirable 
progress in this discussion, that after passing questions 
which have once been taken up, we will not go back to 
them until we get through discussing the remainder of 
the questions which have not been discussed. 

There appear to be no further remarks on Questions 
1 and 2. We will, therefore, proceed to the consideration 
of Question 3. That question is as follows: 



55 

3. Assuming the affirmative of Question 2, does 
this Act in governing the relation of master and 
servant go beyond the power of Congress in that it 
regulates such relation as to intrastate employes by 
making the carrier liable for their negligence to inter- 
state employes? 

As Judge Humphrey remarked this morning, there 
was one point Mr. Littlefield, in his minority report from 
the House Judiciary Committee, made against this Act 
as enacted by Congress; that is, it made the carrier re- 
sponsible for the negligence of an intrastate employe 
toward an interstate employe; that the former Act had 
done the same thing, and that fact had been commented 
on by Mr. Justice White in his opinion. 

Mr. Warfield: I have here the report of that com- 
mittee, and I think it may be of interest to a number here 
to know what he said on that point. 

Chairman Stone : We will be glad to hear it now. 

Mr. Warfield (reading) : 

This bill is subject to the same criticism upon the 
strength of which the court, in the Howard case, held 
the statute relating to the same subject-matter un- 
constitutional. The Howard case held the statute 
under consideration in that case unconstitutional 
upon the express ground that it included in its gen- 
eral terms a regulation of interstate and state com- 
merce, and was, therefore, a regulation of both. 
Their conclusion was based upon two reasons, each 
of which is the inseparable legal concomitant of the 
other, because as a legal proposition it is an impossi- 
bility to increase the rights of the employee with ref- 
erence to his recovery against the master without at 
the same time impairing the rights of the employer 
or imposing upon the employer an additional liabil- 
ity, and the court discussed their reasons from both 
of these points of view. They said in the first in- 
stance that the statute was unconstitutional because 
it was in favor of all the employees of interstate car- 



56 

riers who were engaged in interstate commerce, and 
therefore operated in favor of employees who were 
engaged in state commerce as well as those engaged 
in interstate commerce, as it is clear that the same 
carrier at the same time and as a part of the same 
operation may obviously be engaged in both inter- 
state and state commerce, and has employees for the 
purpose of prosecuting the common enterprise en- 
gaged in each kind of commerce ; and, second, it im- 
posed a new liability upon the carrier who was en- 
gaged in both interstate and state commerce without 
confining the liability of the carrier to such carriers 
as were engaged in interstate commerce, which alone 
Congress had the power to regulate, and so the court 
said, in the first instance : 

"As the word 'any' is unqualified, it follows that 
liability to the servant is coextensive with the busi- 
ness done by the employers whom the statute em- 
braces — that is, it is in favor of any of the employees 
of all carriers who are engaged in interstate com- 
merce. ' ' 

That is to say, the carrier who is engaged in inter- 
state commerce might, at the same time, be engaged 
in state commerce, and would therefore have state 
employees as well as interstate employees, and as the 
language "any employees" covered all employees, 
however engaged, it necessarily operated in favor of 
state as well as interstate employees, and that was 
one of the concomitant factors of the whole equation 
making the Act unconstitutional. 

As to this indispensable factor in the common 
equation, the pending bill very properly confines the 
employees in whose favor it operates to such as are 
engaged in interstate commerce, and thus eliminates 
from State commerce one factor of the whole equa- 
tion. Second, and as to the other indispensable fac- 
tor of the common equation, imposing the new lia- 
bility, the court said: 

"This also is the rule as to the one who other- 
wise would be a fellow-servant, by whose negligence 
the injury or death may have been occasioned, since 



57 

it is provided that the right to recover on the part 
of any servant will exist, although the injury for 
which the carrier is to be held resulted from 'the 
negligence of any of its officers, agents, or em- 
ployees/ " 

And here again the court find that the liability 
feature is imposed without any distinction as to 
whether the negligence is caused by an employee who 
is engaged in interstate or state commerce, and for 
that reason also, that being an inseparable factor of 
the common equation, the statute was held unconsti- 
tutional. In other words, they held that the benefits 
conferred and the liability imposed must both be con- 
fined to interstate commerce. Each proposition is 
indispensably connected with the other, and the limi- 
tation is as important in one case as in the other. 
You can not have one factor without the other. Be- 
cause the statute in question confined neither of these 
inseparable concomitants to interstate commerce, the 
Act was held unconstitutional. The bill now pending 
as to the liability imposed upon the employer or car- 
rier is an exact duplicate of that part of the Act that 
was thus held unconstitutional by the court, and is 
not, as that was not, confined to interstate commerce ; 
and it must be held unconstitutional by the court un- 
less the court reverses itself in the Howard case and 
holds that it will be sufficient if one of the indispensa- 
ble concomitant factors of the equation is within the 
power, while the other factor of the same equation 
is outside of and beyond the power of Congress, 
which we do not think they either will or can do. 

In this respect the bill provides for liability for 
"such injury or death resulting in whole or in part 
from the negligence of any of the officers, agents, or 
employees of such carrier ' ' ; and the Act in this re- 
spect provided for liability "for all damages which 
may result from the negligence of any of its officers, 
agents, or employees" being identical with the lan- 
guage used in the bill, so far as the character or class 
of the employees is concerned through which lia- 
bility is imposed upon the carrier. 

In further elaboration of this idea the court said : 



5« 

' 'The Act then being addressed to all common 
carriers engaged in interstate commerce, and impos- 
ing a liability upon them in favor of any of their 
employees, without qualification or restriction as to 
the business in which the carriers or their employees 
may be engaged at the time of the injury, of neces- 
sity includes subjects wholly outside of the power of 
Congress to regulate commerce." 

A brief analysis of this statement of the court 
shows that the court said that the Act imposed — 

"a liability upon . . . carriers . . . with- 
out qualification or restriction as to the business in 
which the carriers . . . may be engaged at the 
time of the injury" — 

and that was one of the reasons why it was unconsti- 
tutional, and that is precisely what this bill does in 
terms. 

The court also said, presenting the other side of 
the equation, that the liability was — 

i ' in favor of any of their employees without qualifi- 
cation or restriction as to the business in which 
. . . their employees may be engaged at the time 
of the injury" 

In this particular as to the employee, as we have 
suggested, the defect has been cured by providing 
that the employee must, at the time of the injury, be 
engaged in interstate commerce, but as to the carrier, 
as we have already shown, no such limitation is made. 
The illustration sometimes used of a carrier engaged 
at the same time in interstate and state commerce, 
and having, of course, interstate and state employees, 
with an injury to an interstate employee caused by 
the negligence of a co-servant who was a state em- 
ploye, is a conclusive demonstration of the unconsti- 
tutionality of this bill, because it attempts to regu- 
late the relations between a master and a servant 
engaged in state commerce and therefore beyond the 
power of Congress to control. In the case suggested, 



59 

without any legislation the common carrier would 
not be liable, for the simple and obvious reason that, 
although the employee injured was engaged in inter- 
state commerce and the one doing the injury was en- 
gaged in state commerce, they would be co-servants 
of a common master, engaged in a common enter- 
prise, and the injured employee would have no rem- 
edy, as the carrier would not be liable for the negli- 
gence of a fellow-servant. It is proposed by this bill 
to make the carrier liable under such circumstances 
as the carrier is made liable for the "negligence of 
any (that is, all) of its officers, agents or employees," 
and it is too clear for argument that the carrier can 
not be made liable for the negligence of his employee 
engaged in state commerce, the co-servant of his 
interstate commerce employee, without changing the 
common law rule and eliminating the fellow-servant 
limitation of liability, that in the absence of the pro- 
posed bill would relieve the carrier from liability, 
thus regulating state commerce. 

When the bill applies, as this does, to "any em- 
ployees ' ' whose negligence cause an injury, it neces- 
sarily includes, under the rule laid down in the How- 
ard case, state employees engaged in state com- 
merce, which, as has been repeatedly stated and held, 
is beyond the power of Congress. We suggest, in 
order to relieve the bill of this what seems to us 
obvious criticism, that there be inserted after the 

word "carrier," in line , on page , the words 

"who at the time of such negligence are engaged in 
interstate commerce." With the adoption of this 
amendment the bill, with reference to both of the in- 
dispensable factors making up the common equation, 
would be within the constitutional limitations laid 
down in the Howard case. (Congressional Record, 
April 6, 1908, pp. 4550 and 4551.) 

Mr. Humphrey : May I suggest that you turn over a 
page and read what Mr. Payne says, on page 4552 of the 
Congressional Record of April 6, 1908, at the bottom of 
the second column, beginning after the words ' i Applause 
on the Republican side." 

Mr. Warfield (reading) : 



6o 

If there is opposition on this side of the House 
it is because one or two members believe that the 
bill is unconstitutional, and may be decided so, as the 
former bill was. When the former bill was before 
the House I said to gentlemen around me that I 
feared it was unconstitutional, but it meets the ap- 
probation of the counsel for the locomotive engineers, 
and therefore I voted for it. I say to-day that I fear 
this bill may receive the same decision from the Su- 
preme Court of the United States when it gets there, 
but I shall vote to-day, as I voted a year and a half 
ago, in favor of passing an Employers' Liability Act. 

It is needless to add that the recommendations of Mr. 
Littlefield and Mr. Bannon were not accepted by the rest 
of the committee, and the Act was passed with the ob- 
jectionable provisions to which the former referred. 

Mr. Helm : I am unable to agree with Mr. Littlefield 
in his construction of the opinion. It has been often held 
by the Supreme Court that wherever it was a necessary 
incident to the regulation of interstate commerce, Con- 
gress could control, to that extent, intrastate commerce. 
But I am unable to see why, if it is necessary to protect 
interstate employes, Congress can not treat intrastate 
employes simply as employes of the company and impute 
their negligence to the company. I do not think, as sup- 
posed by Mr. Littlefield, that there are two factors to the 
equation, for it is simply a case of the interstate employe 
being injured by the negligence of the company, and the 
fact that the agent whose negligence is imputed to the 
company happens, to be engaged wholly in intrastate com- 
merce can not, in my opinion,- make any difference. 

Chairman Stone : While you are on that point, what 
effect do you give to the language of Mr. Justice White 
in his opinion, referring to the fact that the employe 
who inflicts the injury or is guilty of negligence that re- 
sults in injury or death to the interstate employe is en- 
gaged in intrastate commerce? 



6i 

Mr. Helm: I do not know precisely how to answer 
that, except to say that in that case no such question 
existed. It was a mere suggestion. I believe that when 
the court comes to consider the matter, when the case 
is actually presented, it will protect interstate employes, 
and if it becomes necessary to protect interstate employes, 
the fact that the agent guilty of negligence is an intrastate 
employe will not affect the question. 

Mr. Reath: In answer to what Mr. Helm has said 
so interestingly, it seems to me that we must admit that 
there are a great many cases in which Congress may 
regulate an instrumentality, for instance, of State com- 
merce, because it directly affects interstate commerce. 
The Safety Appliance cases are instances, and I have 
here a copy of an opinion of Judge Tayler 's, in the Dis- 
trict Court of the United States for the Northern District 
of Ohio, not yet reported, which is of notable interest as 
showing the line of demarcation between cases of that 
class and the Employers' Liability cases. The case is 
United States v. Wheeling & Lake Erie Railroad, decided 
June 16, 1908, by Judge Tayler, in the United States 
District Court, Northern District of Ohio, Western Di- 
vision. 

In that case it was urged by the Wheeling & Lake Erie 
Railroad, which was a defendant in a penalty suit under 
the Safety Appliance Act, that this Act had the effect 
of regulating an instrumentality of State commerce, and 
counsel for the Wheeling & Lake Erie Railroad urged 
that under Howard v. Illinois Central Railroad the Act 
was rendered invalid. 

Judge Tayler distinguishes thus between the Safety 
Appliance Laws and the Employers' Liability Act: 

An employee of a railroad company engaged in 
interstate commerce does not, merely because he is 
such employee, sustain the same relation to interstate 



62 

commerce as a car used on a railroad engaged in 
interstate commerce sustains to interstate commerce 
on that road. Certainly the Federal Government 
owes no duty to, and has no authority over, an em- 
ployee of a railroad which is engaged in interstate 
commerce if the employee himself is not engaged in 
the work of interstate commerce. That employee is 
subject, in respect to his relations with the railroad 
company, to the laws of the State in which the serv- 
ice is performed. There is no reason why the power 
of the State should not be sufficient for his protec- 
tion, or why the Federal Government should inter- 
fere with respect to that or any other matter relating 
to that employee in respect to his work with the rail- 
road company, so long as it does not relate to the 
interstate commerce of the company. 

It seems to me that that is suggestive as distinguish- 
ing the Employers ' Liability Acts, and their effect on 
State employes, from Acts such as the Safety Appliance 
Act. May we not with show of reason urge that the 
State employe can not be reached by Congress! 

Mr. Cary: On this same subject, is it not necessary 
to determine, in the first place, what is regulation of 
human beings ? 

If Congress has any power at all under this Act, it 
is on the theory that it has the right to regulate them 
as instrumentalities of commerce or in their relation to 
certain factors of commerce. The Act creates a rela- 
tionship between two classes of people for a benefit of 
some kind to some one. The benefit is the object sought 
by the Act, else there is no power in Congress to pass 
the regulation. I think we are all agreed that to create 
a mere rule of liability for the purpose of creating rights 
between the parties as such, is the exercise of a pure 
police power, that such power does not belong to Con- 
gress, and that that power must be exercised in this case 
for the purpose of producing some other result. Like 



65 

Mr. Brownell, I have been puzzled to find out what that 
result is, but let us, for the sake of this argument, as- 
sume that it exists and that it gives some protection to 
interstate commerce. Let us assume that the object is 
the protection of the employe, in order that he may be 
placed in a position to do his work better, or in order 
that he may protect the passengers, or in order that the 
business, the shipments, which are handled may be taken 
care of more effectively; that certain rights are created 
in favor of the employes for those reasons. 

Now, in answer to the proposition that Mr. Littlefield 
has put (I do not know whether it would be an answer to 
this decision that has just been read), can it not be said 
that if Congress has power to create certain rights in 
favor of certain employes, namely, employes when em- 
ployed in interstate commerce, may it not pass any laws 
which will make effective and secure those rights! Of 
what consequence is it who causes the injury to those 
employes if, in order to fully protect them in the per- 
formance of their duties in interstate commerce, it be 
essential to pass a law covering, in certain respects, all 
employes who are employed by the carrier! Suppose 
it be impossible to make effective their protection or 
to bring about the result which this Act is supposed 
to accomplish, whatever it may be, in protecting inter- 
state commerce ; suppose it were impossible to make that 
desire effective without passing a law making the cor- 
poration responsible, in all its ramifications, to the in- 
terstate employe. I take it that under the proposition 
that Mr. Helm has just made, namely, that where Con- 
gress has power over a certain subject-matter it may 
pass all laws of every kind or character to make effective 
its control of that subject-matter, it may invade the police 
power of the State, if it be essential to do so, to bring 



6\ « 

about the desired result; that is, although the police 
power of the State is ostensibly exclusive to it, and the 
Federal Government has no police power in itself, still 
Congress may, under the Constitution, pass all laws that 
are essential to make effective the powers that belong 
to it. 

If it becomes essential, therefore, for Congress to 
exercise a purely police regulation for the purpose of 
making effective the powers that belong to it, I take it 
that it may do so. 

This Act provides that every common carrier by rail- 
road, while engaging in commerce between the States, 
shall be liable to an employe who is employed in such 
commerce. Judge Humphrey said here to-day that the 
signification that I thought ought to be placed on the 
word "engaging," as distinguished from the word " en- 
gaged,' ' was not of importance in the Act, because, after 
all, the Act is addressed to the employe while employed 
in such commerce. 

The employe, being an individual, a human being, of 
course is affected only at the time he is actually per- 
forming some act relating to interstate commerce, and 
therefore the carrier would be responsible to him only at 
that particular time, whether ' ' engaging ' ' meant engaging 
at the time in some physical act through its employes, or 
engaged generally in interstate commerce. But is not the 
distinction between the words ' l engaging ' ' and ' ' engaged ' ' 
available in the following respect : It has been said that 
the section is so drawn that it makes the carrier respon- 
sible in the case of injuries caused by any of its employes, 
whether engaged in intrastate commerce or interstate 
commerce. Can it not be said that the carrier ' ' engaging 
in interstate commerce " through its employes means 
any of its employes while acting as its agent, and in 



65 

its behalf, while it is, as to the particular time the injury 
happens, engaging in interstate commerce 1 ? Is that a 
construction which may be placed upon the language? 

Would it not be possible to so construe the Act as 
to say, when the injury is occasioned by an employe, that 
it means any employe acting for the carrier at the time 
being engaged in interstate commerce! 

It seems to me that the language of the section makes 
it possible that that construction might be placed upon 
it; and in view of the forced constructions that have 
been placed by the State courts upon their Employers' 
Liability Acts (for instance, limiting them to employes 
engaged in hazardous employment when there seems to 
be absolutely nothing in the Act to warrant such a limita- 
tion), and in view of the fact that the Supreme Court 
will probably exercise all its ingenuity to find the Act 
constitutional, if possible, it seems to me that it is worth 
while considering whether such construction as that may 
not be placed upon the Act in this respect. 

Mr. Humphrey : I want to utter a word of caution in 
reference to something that Mr. Gary said. 

It does not seem to me to follow that because Con- 
gress can not effectively reach a certain result by legis- 
lation which is strictly within Congressional power, there- 
fore we must stretch the power. Mr. Cary says: Sup- 
pose it happens that in order to affect the interstate em- 
ploye it becomes necessary for Congress to regulate the 
relation between the carrier and the intrastate employe, 
does it not follow, he says, that as Congress has the 
right to make this legislation effective, although confined 
ordinarily to the relation of the interstate employe, it 
can stretch its power, in order to protect the interstate 
employe, to regulate the relation of the intrastate em- 
ploye? 



66 

It seems to me that that is not only a dangerous, but 
a fallacious, course of reasoning in regard to a govern- 
ment of limited power. Congress has only the power that 
the Constitution gives it. It has the power to regulate 
commerce between the States. But the fact that it has 
the power to regulate commerce between the States does 
not give it power to regulate commerce within the State, 
although, in order to have an effective regulation of in- 
terstate commerce, it may be necessary to regulate in- 
trastate commerce. 

We have an example that I think of in the decision 
of the Supreme Court under the Sherman Anti-trust Law. 
That law forbids combinations in restraint of interstate 
trade. You recollect there came before the Supreme 
Court of the United States the Addyston Pipe & Steel 
Company case, involving a contract between a number 
of corporations who were engaged in making cast-iron 
water pipe. Those corporations had agreed among them- 
selves, practically, not to bid against each other. A bill 
was filed to enjoin that agreement. It was enjoined in 
the lower court. The Circuit Court of Appeals delivered 
an opinion through Judge Taft and the case went to the 
Supreme Court of the United States. Mr. Justice Peck- 
ham, speaking for the unanimous court to this point, 
said, at page 247: 

The views above expressed lead generally to an 
affirmance of the judgment of the Court of Appeals. 
In one aspect, however, that judgment is too broad 
in its terms — the injunction is too absolute in its 
directions — as it may be construed as applying 
equally to commerce wholly within a State as well 
as to that which is interstate or international only. 
This was probably an inadvertence merely. Al- 
though the jurisdiction of Congress over commerce 
among the States is full and complete, it is not ques- 
tioned that it has none over that which is wholly 



6 7 

within a State, and therefore none over combinations 
or agreements so far as they relate to a restraint of 
such trade or commerce. It does not acquire any 
jurisdiction over that part of a combination or agree- 
ment which relates to commerce wholly within a 
State, by reason of the fact that the combination 
also covers and regulates commerce which is inter- 
state. The latter it can regulate, while the former 
is subject alone to the jurisdiction of the State. The 
combination herein described covers both commerce 
which is wholly within a State and also that which 
is interstate. 

In regard to such of these defendants as might 
reside and carry on business in the same State where 
the pipe provided for in any particular contract was 
to be delivered, the sale, transportation, and deliv- 
ery of the pipe by them under that contract would be 
a transaction wholly within the State, and the statute 
would not be applicable to them in that case. They 
might make any combination they chose with refer- 
ence to the proposed contract, although it should 
happen that some non-resident of the State eventu- 
ally obtained it. 

The fact that the proposal called for the deliv- 
ery of pipe in the same State where some of the 
defendants resided and carried on their business 
would be sufficient, so far as the Act of Congress 
is concerned, to permit those defendants to combine 
as they might choose, in regard to the proposed con- 
tract for the delivery of the pipe, and that right 
would not be affected by the fact that the contract 
might be subsequently awarded to some one outside 
of the State as the lowest bidder. In brief, their 
right to combine in regard to a proposal for pipe 
deliverable in their own State could not be reached 
by the Federal power derived from the commerce 
clause of the Constitution. 

There can be no doubt that in order to make an ab- 
solutely effective Anti-trust Law, combinations in re- 
straint of trade should be forbidden, which are not only 
interstate but also intrastate. In order to make the 



68 

Sherman Anti-trust Law effective, it should have been 
broad enough to prevent the combination of sugar manu- 
facturers in the State of Pennsylvania, which the Su- 
preme Court of the United States held, in the Knight 
case, not to be inimical to the Sherman Anti-trust Law, 
because it was a transaction wholly within a State. 

"What I mean is this : it will not do to say that because 
an effective law can not be passed by Congress without 
invading the domain of the States, therefore Congress 
can invade the domain of the State. 

It does not seem to me, therefore, that Mr. Cary has 
the right answer to the proposition that Congress can 
regulate the relation of a carrier and intrastate employe 
by saying that in order to effectually govern the relation 
of carrier and intrastate employe, the other relation must 
also be taken hold of by Congress and governed ac- 
cordingly. 

Mr. Warfield : I want to offer this suggestion, though 
I am not sure there is any force in it : They seem to treat 
this statute as one for the exclusive benefit of the em- 
ploye. The title of the Bill, as I have it here, is ' ' An Act 
Eelating to the Liability of Common Carriers by Eailroad 
to Their Employees in Certain Cases, " and it is declared 
in the first section that every common carrier described 
therein shall be liable for the negligence of any of the 
officers, agents, or employes of such carrier. Now, is not 
the negligence the thing that is animadverted upon in this 
statute and must it not therefore be the negligence of 
the person causing the injury, rather than the person who 
is injured, that' is to determine whether or not he is em- 
braced by the statute or excluded from the operation of 
the statute, because he is an intrastate employe? 

Mr. Trabue: I think Mr. Helm is right, that it is 
the relation between the employer and the interstate em- 



6 9 

ploye that is regulated. It is the liability of the em- 
ployer to the employe who is engaged in interstate com- 
merce, and it is absolutely immaterial whether or not 
the injury be caused by the employer's employe who is 
engaged in intrastate commerce, or by some outsider, or 
however it may be caused, if the liability be one of the 
employer to the employe engaged in interstate commerce. 

If Congress sees fit to make the employer liable, Con- 
gress may ignore the cause, so far as the power that we 
are considering may be concerned. Whether Congress 
might intrench upon some right secured by some other 
immunity in the Constitution is another question, but 
clearly the relation of the employe who causes the negli- 
gence to the employer is outside the question of the 
liability of the employer to the employe engaged in inter- 
state commerce. 

If it were a liabilty of the employe engaged in intra- 
state commerce to the employe engaged in interstate 
commerce, then the question which Mr. Eeath has sug- 
gested would arise. 

Eecurring to the question between Mr. Cary and Judge 
Humphrey, it seems to me that while it may not be neces- 
sary to determine that question in determining the ques- 
tion between Mr. Helm and Mr. Littlefield, yet it is a 
question we shall have to meet here in one form or an- 
other. This is not a case of Congress regulating an 
interstate road and a State regulating an intrastate road, 
nor a case of Congress regulating an agreement which 
is in restraint of interstate trade and a State regulating 
an agreement in restraint of intrastate trade, but here the 
Act which is to be regulated — that is, the operation of 
those trains — is one that is the subject, or might become 
the subject, if you will consider the matter strictly, of 
regulation by both Congress and the State. In other 



words, the train and all the employes of that train, and 
everybody concerned in its operation, are serving both 
interstate commerce and intrastate commerce and may be 
regulated. 

It is easy to see that if you regulate that train under 
the power to regulate commerce (and you may do that, 
according to the decision of the Supreme Court in the 
Howard case), you have to regulate those employes, and 
you have to regulate them under the power to regulate 
commerce, and then you might have conflicting regula- 
tions, unless the regulations by Congress and by the 
State are, by coincidence, exactly the same. Under those 
circumstances one or the other must be paramount. That 
appears to be inevitable. 

Now, which is paramount? We have the same ques- 
tion when we come to regulating the jurisdiction of the 
Federal and State courts. A case is removed to the 
Federal court and by command of the Act of Congress 
the State court shall proceed no further, but it is only 
when the case is a case for removal that the State court 
may proceed no further. The State court may proceed 
further if it be not a case for removal. Often the ques- 
tion rests upon matters of fact as to the citizenship of 
the parties, or, under some late cases, on the question of 
fraud in the joinder of persons united as defendants for 
the prevention of removal. In all these cases the State 
court must determine, primarily, if its jurisdiction be 
superior to that of the Federal court, and then the Fed- 
eral court must determine the same question, and both 
courts would be determining questions of fact ; both courts 
with ample jurisdiction, each making a determination 
that is absolutely conclusive until reversed. 

But the Supreme Court of the United States has de- 
termined that in a case like that the Federal court must 



7* 

determine all questions of fact and remand the case to 
the State court if the State court has jurisdiction ; and yet 
when the Federal court has remanded the case it is shown 
that the Federal court had no jurisdiction from the be- 
ginning. But it is the only way out of the dilemma. 
Here is a matter that must be passed upon by both the 
Federal government and the State government. 

So it would seem that although it is not necessary 
to meet that question in determining the question be- 
tween Mr. Littlefield and Mr. Helm, yet we must meet 
that question before we are through here; that is, we 
must determine whether Congress has the power or the 
State has the power to legislate, when we have an inter- 
state and intrastate train with interstate and intrastate 
employes upon it, since the Supreme Court has held that 
Congress may legislate with regard to employes engaged 
in interstate commerce. 

Mr. Reath has referred to a question which, I believe, 
has been passed upon in a case in 149 Federal Eeporter, 
page 107, regarding the Safety Appliance Law. One of 
the Federal judges has held that the amendment of 1903 
to the Safety Appliance Law is constitutional, although 
it extends further than to trains or vehicles engaged 
strictly in interstate commerce, because he says that if 
there are trains equipped as required by Act of Con- 
gress, and other trains upon the same track, not so 
equipped, there might be a collision because of lack of 
equipment on the intrastate trains. Whether or not that 
be a correct decision,' it is a decision looking toward the 
same point that I am indicating. 

So that, after all, may not the courts have been driven 
to concluding, as the Supreme Court has so often said 
regarding certain questions of interstate commerce, that 
the States may in these matters regulate the relations 



72 

of employer and employes of trains until Congress exer- 
cises its power to regulate the relation between master 
and servant concerning service on those trains. It oc- 
curs to me. that such will probably be the only solution 
of the question. 

Regarding the principal question, it would seem that 
a majority of the justices of the Supreme Court have 
decided that Congress has power to regulate the relation 
of master and servant regarding interstate commerce, 
and in the Adair case, to which Mr. Brownell has alluded, 
the Supreme Court has said that it was so held in the 
Howard case. In all the confusion in which this matter 
stands in the various aspects which have been presented 
here, it seems to me the Supreme Court may hereafter be 
called upon to consider the question in some shape or 
other. The decision in the Adair case almost seems, in 
some respects, to reduce the language of the Supreme 
Court in the Howard case to an absurdity. For instance, 
the court says: 

The decision on this point was placed on the 
ground that a rule of that character — 

that is, of the character of that in the Adair case- 
would have direct reference to the conduct of inter- 
state commerce, and would therefore be within the 
competency of Congress to establish for commerce 
among the States, but not as to commerce completely 
internal to a State. Manifestly, any rule prescribed 
for the conduct of interstate commerce, in order to 
be within the competency of Congress under its 
power to regulate commerce among the States, must 
have some real or substantial relation to or connec- 
tion with the commerce regulated. But what pos- 
sible legal or logical connection is there between an 
employee's membership in a labor organization and 
the carrying on of interstate commerce! 



'73 

It seems to be manifest that there is the same relation 
as there is between the personal liability of the master 
to his employe and its relation to interstate commerce. 
In other words, regulating the liability of the master to 
the employe does not regulate commerce. All that could 
be said is that it is for the greater efficiency of the em- 
ploye, giving the employe a greater remedy, make him 
more independent, or give him greater efficiency in some 
way not explained. And if that be true, the same might 
be predicated of membership in a labor union that un- 
dertook to select its members, to discipline its members, 
and to provide for the betterment of its members. So 
that the denial that the regulation of the labor union 
has reference to a regulation of commerce seems to show, 
equally, that the regulation of the liability of a master 
to a servant has none. 

So, taking the whole case and seeing that the Supreme 
Court must determine what the statute means and what 
employes are affected by it, and seeing the number of 
questions that arise, it is, as has been stated here, inad- 
visable to give up the question of the constitutionality 
of this statute on the points indicated by Mr. Justice 
White, which points were not allowed by other justices 
in the Howard case. 

Mr. Waller: It seems to me that in the discussion 
of this third inquiry a very important proposition arises, 
to wit, what did Congress intend to do by this Act! 

Of course, the purpose of the Act would be said to 
be to regulate commerce between the States. But to 
regulate it how f It seems to me, in reading the Act, 
that it must be a regulation in one of two ways, if a 
regulation at all: first, to prevent negligence by employes 
engaged in interstate commerce, or, second, to create a 
right of action in favor of employes for injuries sustained 



74 

while engaged in interstate commerce. If the Act be 
a regulation of commerce, it must be a regulation through 
one of these two avenues. 

Was the purpose of this Act to prevent negligence on 
the part of interstate employes! It seems to me it was 
not, because if Congress had had that purpose it would 
have provided for the liability of an engineer or of his 
employer, the railroad company, for injury to a passenger 
on a highway, struck through the negligence of such in- 
terstate employe. But Congress evidently had no inten- 
tion of that sort. So it would seem that the purpose of 
this Act was to create a right of action against a rail- 
road carrier in favor of an employe for injuries sustained 
by him while engaged in interstate commerce. 

If that be the purpose, and if that be a regulation 
of interstate commerce, then let us take this illustration : 
There is an interstate train. The engineer of that train 
is killed through the negligence of an engineer of an 
intrastate train. Now, I take it, if Congress has the 
right to regulate commerce by creating a right of action 
in favor of an interstate employe for injuries sustained 
by him, then it can create a right of action in favor of 
the dead engineer against the other engineer. If it can 
create a right of action in favor of the dead engineer 
as against that other engineer, who was an intrastate 
employe, why can not it go a step further and apply 
the principle of respondeat superior and make the mas- 
ter, who is engaged in interstate commerce and who owns 
the track and provides the intrastate employe with the 
train, liable for the negligent act of that intrastate em- 
ploye ? 

So it seems to me, with reference to this third ques- 
tion, if we pass over the first and second and admit that 
creating a right of action in favor of persons injured 
while engaged in interstate commerce is an act regulat- 



75 

ing interstate commerce, that the question of whether this 
interstate employe is injured by an interstate employe 
or intrastate employe is a matter of no moment. 

Mr. Bobbins : May I make one suggestion? One of 
the gentlemen who have spoken has said that clearly 
Congress could not regulate the relation of an interstate 
employe and an intrastate employe. Still he takes it for 
granted that Congress can indirectly regulate that very 
relation by introducing the third term, the employer, and 
in doing so he takes it for granted that Congress can 
regulate the relation of employer to intrastate employe. 

It seems to be assumed here that the responsibility of 
the employer for the act of the employe rests somehow 
on some such fundamental principle, that it may be taken 
absolutely for granted. But I want to question that very 
seriously. The rule of respondeat superior is a very 
artificial one. It is to be explained historically only. It 
originated at a time when the Roman father of a family 
had almost absolute power over his slaves and his re- 
sponsibility corresponded with his power. So that he was 
responsible for the acts of his slaves. If you consider 
carefully the real nature of the rule, you will fail to 
find any really adequate justification for it, since it means, 
on analysis, that one man is made responsible for an- 
other man's wrong. It will appear clearer if you leave 
railroads out of account and take into account simply 
the ordinary employer. Suppose him to be a farmer. 
He may employ two men from the next farm to come 
and help him, and while they are loading hay one or 
both may be negligent, with the result that one gets his 
leg broken. Now, the responsibility of that farmer for 
an act with which he did not have anything to do — he 
may have been a mile off — does not rest on any funda- 
mental principle of equity. It is fundamentally inequita- 



- 7 6 

ble, because it means that he has to pay for conduct for 
which he is not in any wise truly responsible. He has 
to pay for the negligence of another fellow who is worth, 
perhaps, as much money as he is and just as inde- 
pendent. 

This rule of the common law, which is based on his- 
torical accident, has no fundamental equity. As it stands 
in the common law, it stands with qualifications. One of 
these qualifications is the fellow-servant doctrine, and 
another the doctrine about taking the risks of employ- 
ment. 

The relation of employer to employe, under which the 
employer is responsible to the employe for the acts of 
the servant of the employer, but subject to those qualifi- 
cations, is a matter of positive law, and that positive law 
is State law; and when you say that Congress can regu- 
late that relation, the relation of the employer to the 
intrastate employe, and say that the employer shall be 
responsible without the limitations of the positive law 
as this existed under the State legislation, you are say- 
ing that that can be done which the court in the Howard 
case said could not be done, and I think this reasoning 
lends force to the clear suggestion of Mr. Justice White 
that that can not be done. 

Mr. Cumming- In the case of an employe engaged 
in interstate commerce a Federal court will throw the 
aegis of its protection over that employe. If he is in- 
jured, not only through the negligence of a co-employe 
in the same interstate business, but also by the negligence 
of any other kind of employe, or by the negligence or 
malicious act of any person, they say he has certain rights 
and privileges which a man who is not engaged in inter- 
state commerce may not have. May it not be said that 
it is all done for the purpose, or supposed purpose, of 



77 

making that employe more diligent in transacting the 
business committed to him! It seems to me that the 
Federal government can protect him so as to make him 
do his business and his duty more thoroughly and more 
easily, almost upon the same principle that it passes 
laws to prohibit persons interfering with the mails. Those 
special laws do not grow out of the relation of master 
and servant, but are simply to protect the transportation 
of the mails. The same way with a man who is trans- 
porting interstate commerce; he is to be protected in a 
way different from the way other persons are protected. 

If that view is correct, I am afraid we can not get 
any benefit by raising the point that we have been dis- 
cussing, with respect to intrastate business or the rela- 
tion of the carrier to his intrastate servant, when we are 
held liable for the intrastate servant's negligence. 

It seems that has nothing to do with the matter. It 
seems that Congress is protecting the men engaged in 
that particular class of business, regardless of where 
the negligence or the malicious act comes from. 

Mr. Lindley : I take it we all agree that the Federal 
government could not say that I, for instance, should be 
liable to my servant for the negligence of the Chairman's 
servant. It seems to me that the carrier has a dual per- 
sonality ; it is an interstate carrier and an intrastate car- 
rier. As to its interstate character or personality, the 
sovereignty of the United States is full and complete, 
while as to its intrastate character or personality, the 
State sovereignty is complete. As expressed in the cases, 
the power of the United States over interstate commerce 
is just as full and complete as that of the State over 
intrastate commerce. Let the interstate character of the 
carrier be represented by X, and its employes by E. Let 
its intrastate character be represented by Y, and its em- 



78 

ployes by E-l. In the domain of legislation pertaining 
to the relation obtaining between XE the sovereignty 
of the United States is complete; and when it legislates 
relative to that relation, it is assumed to legislate only 
within such domain. In the domain of legislation affect- 
ing the relation of YE-1, the sovereignty of the State 
is complete (subject to conflict with inconsistent Federal 
laws passed pursuant to the power of the latter govern- 
ment to legislate in the domain of XE). The Federal 
government has nothing to do with legislation in the 
domain YE-1, except as indirectly, but not intentionally, 
laws passed by it in domain XE come in conflict there- 
with. As to X, the carrier is one employer ; its employes 
one set of employes. As to Y, it is another distinct em- 
ployer, with a distinct set of employes, E-l. Y and E-l 
are personalities beyond the jurisdiction of the Federal 
government, and the relation obtaining as between them 
beyond its domain of legislation, except as that relation, 
and they may be affected indirectly by laws passed for 
the purpose of controlling and affecting XE. It should 
not be assumed that the Federal government, in passing 
legislation, intended to do other than to legislate relative 
to the rights of those wholly within its proper field of 
legislation, to wit, the rights obtaining as between XE, 
and that, therefore, the Act in question in no way per- 
tains to Y or E-l or to any of the acts thereof. 

It seems to me, therefore, that we should take the 
position as outlined by Judge Humphrey and follow it, 
namely, that the Federal government can not legislate in 
respect to the matters contained in the Act in question, 
except as the same relate to the interstate personality 
of the carrier and its interstate employes. 

Mr. Cary: Suppose in your algebraic problem it 
could be demonstrated that it would be impossible to 



79 

regulate the combination XE without affecting the com- 
bination YE-1, wouldn't you say that the sovereignty 
which was entitled to regulate XE would be entitled, 
nevertheless, to go ahead if it be the primary sovereignty 
and to control incidentally the other combination! 

Mr. Lindley : Yes ; I think that the law is that where 
an Act passed by the Federal government necessarily 
comes into conflict with the other, that the other must 
give way. But, surely, in the problem before us that 
conflict does not exist. 

Mr. Cary: That is begging the question, because we 
do not know what the law intends to regulate, to a cer- 
tainty. 

Mr. Lindley: We know this law is based pursuant 
to jurisdiction XE, and XE is all within the Federal juris- 
diction, and surely it was not passed in relation to some- 
thing beyond the jurisdiction of XE. 

Mr. Cary: Let us take the Safety Appliance Act, 
and the amendment to it of 1903, which provides, in sub- 
stance, that all the cars of every carrier engaged in in- 
terstate commerce shall be equipped in a certain way. 
While, perhaps, there has been no interpretation of that 
language, yet it is capable of being interpreted as mean- 
ing that all cars used on every railroad engaged in inter- 
state commerce, whether or not those particular cars 
themselves are used in interstate commerce, shall carry 
certain safety appliance devices, is not the basis for argu- 
ing that that Act is constitutional, this, namely, that it 
would be impossible to make effective the safety appli- 
ances upon cars used in interstate commerce, unless the 
cars that are used in intrastate commerce also had the 
same character of device? 

Mr. Helm : Of course, we all agree with Judge Hum- 
phrey as to the relation of the powers between the States 



8o 

and the Federal government, and that the Federal gov- 
ernment is a government of limited powers, bnt he must 
agree with us that within those powers the rights of the 
Federal government are supreme. 

I do not remember any decision of the Supreme Court 
in which the right to exercise a Federal power has been 
denied because, in the execution of it, it has been re- 
garded as subordinating, to some extent, the State law. 
In other words, whatever is necessary to be done — 

Chairman Stone: In the opinion of Congress! 

Mr. Helm: No; whatever is necessary to be done, 
not in the opinion of Congress, but in the opinion of the 
Supreme Court, to carry into effect the power which the 
Federal government has, must be assumed. The Addys- 
ton Pipe Company case, which has been read from, does 
not conflict with that proposition at all, because in that 
case all the Supreme Court means to say, and all it does 
say, is that the power of the Federal government could 
there be fully executed without intrenching on the State 
power, in the case of contracts which were to be per- 
formed within the State and which had nothing to do with, 
and did not impair, the right to execute the Federal law 
on contracts which had an interstate operation. 

Chairman Stone: If there are no further remarks 
upon Question 3, we will pass on to the consideration of 
the next three questions, which are to be discussed to- 
gether, 4, 5, and 6. They read as follows : 

4. Assuming that the Act is not void for the 
reason above suggested, then does the Act violate 
any other clause of the Constitution of the United 
States, e. g., the Fifth Amendment? 

5*. Does the Fifth Amendment, in prohibiting 
Congress from depriving any person of property 
without due process of law, embrace a prohibition 
equivalent to that imposed upon the States by the 



8i 

Fourteenth Amendment, prohibiting them from de- 
priving a person of property without due process 
of law, and denying any person within its jurisdiction 
the equal protection of the laws? 

6. Are the authorities which hold void Acts of 
State Legislatures, partial in their operation* and not 
founded upon reasonable and just classification, ap- 
plicable to congressional legislation of the same char- 
acter? In other words, if a State is prohibited from 
passing a certain law under the Fourteenth Amend- 
ment, is Congress prohibited from passing a similar 
law under the Fifth Amendment? 

Mr. Warfield: Mr. Brownell is nodding at me, and 
I suppose that means — 

Mr. Brownell : — That you are best qualified to speak 
on these topics. 

Mr. Warfleld : I do not suppose that it is worth while 
for me to go into this matter as elaborately as I did 
before the House Committee on the Judiciary, and I will 
confine myself to the statutes of Minnesota, Iowa, Kansas 
and Indiana, relating to the liability of employers. I 
made quite an investigation of this subject in order to 
prepare myself to make an argument before the House 
Committee and became convinced that the best considered 
opinions of the courts of last resort of the States, con- 
struing Employers' Liability statutes of those States, 
were the opinions of the courts of the States, to 
which I refer, and which opinions are all to the effect 
that it was incompetent for a State Legislature to enact 
legislation applicable to railroads alone, unless the stat- 
utes were originally so written or were so construed by 
the courts as to embrace only those employes whose 
occupations could be said to be peculiarly hazardous. 
The phrase sometimes used is "railroad hazards." In 
other words, that it must be the character of the em- 
ployment, rather than the character of the employer, 
against which legislation should be directed. 



82 

The earliest of the State statutes, that I recall, is the 
statute of Iowa. In the Deppe case the Supreme Court 
of that State did apply that statute to a man engaged 
in the loading or unloading of a car, but in the Foley 
case, which comes later, the same court denied the appli- 
cability of the statutes in the case of a car repairer who 
was injured while he was at work under a car on a side- 
track, and declared that in order to uphold the statute, al- 
though by its terms sufficiently broad to include all em- 
ployes of carriers, they must so construe the statute as 
to make it applicable only to the extra-hazardous branches 
of the railroad service, and I think it may be safely said 
that from the time the Foley case was decided down to 
this time, the Iowa court has never applied it in any 
case in favor of any railroad employe, unless at the time 
of his injury he was engaged in train service. 

Mr. Helm : Can you give us the language of the Iowa 
statute 1 

Mr. Warfield : Yes ; I will read it to you. The Iowa 
statute, enacted in 1862, reads as follows : 

Every corporation operating a railway shall be lia- 
ble for all damages sustained by any person, includ- 
ing employees of such corporation, in consequence 
of the neglect of agents, or by mismanagement of the 
engineers or other employees of the corporation, 
and in consequence of the willful wrongs, whether 
of commission or of omission, of such agents, engi- 
neers, or other employees, when such wrongs are in 
any manner connected with the use and operation of 
any railway on or about which they shall be em- 
ployed, and no contract which restricts such liability 
shall be legal or binding. 

Mr. Humphrey : It would be pertinent to observe that 

that statute used the words ' l operation of any railway. ' ' 

Mr. Warfield: Yes; it does do that. Attention was 



83 

called to that in the argument before the Committee, but 
"operation of any railway' ' I considered to be a very 
latitudinarian expression. 

Chairman Stone : It uses the words ' ' connected with 
the use and operation of any railway." 

Mr. Warneld: The cases under the Iowa statute, 
that might be consulted with advantage, are Akeson v. 
E. Co., 75 N. W. 676; Luce v. E. Co., 67 Iowa, 75; Stroble 
v. E. Co., 70 Iowa, 555 ; Eeddington v. C, M. & St. P. 
E, Co., 78 N. W. 800; and Foley v. E. Co., 64 Iowa, 644, 
and the earlier case to which I referred, of Deppe v. E. 
Co., 36 Iowa, 52. 

The next statute, in chronological order, is the Kansas 
statute. That statute has been more broadly construed 
by the Supreme Court of Kansas than have similar stat- 
utes in Minnesota, Iowa and Indiana. It has been con- 
strued as embracing others than those who were directly 
engaged in train operation and in train service. But in 
the Medaris case the Supreme Court of Kansas refused 
to apply the statute to a stone mason engaged in setting 
curbing around an office building and depot of the rail- 
road company. 

Mr. Helm : Can you read that statute 1 

Mr. Warneld : Yes ; I will read it. 

Every railroad company organized or doing busi- 
ness in the State of Kansas shall be liable for all 
damages done to any employee of said company in 
consequence of any negligence of its agents, or by 
any mismanagement of its engineers or other em- 
ployees, to any person sustaining such damage: 
Provided, That notice in writing that an injury has 
been sustained, stating the time and place thereof, 
shall have been given by or on behalf of the person 
injured to such railroad company within eight months 
after the occurrence of the injury: Provided, how- 
ever, That where an action is commenced by the in- 



84 

jured person within said eight months, it shall not 
be necessary to give said notice: And provided 
further, That where any person injured is in the 
hospital of or under the charge of the railroad com- 
pany causing the injury, or is prevented by the ef- 
fects of said injury, the said eight months shall not 
begin to run until such injured person is discharged 
from said hospital or care of said railroad company or 
until such disability be removed : Provided, further, 
That in case said injured person shall die, as a re- 
sult of said injuries, within said eight months, it shall 
not be necessary to give said notice: Provided, 
further, That said notice need not state whether or 
not suit is intended to be brought. 

There is a second section which relates to the service 
of notice. I suppose you do not care for it. 

Now, the Supreme Court of Kansas, in the Medaris 
case, said this: 

Whether Medaris is entitled to the benefit of this 
law depends upon the character of the work in which 
he was engaged and not on the mere fact that he 
was an employee of the railroad company. The val- 
idity of the law has been sustained as against the 
charge that it was class legislation, on the ground 
that the hazardous character of the business of opera- 
ting a railroad justified the passage of a law for 
the protection of those engaged in that service. The 
rule of liability applied under the statute is different 
from that which ordinarily applies between master 
and servant, but this difference is founded on the 
hazardous character of the service and is not in- 
tended as a discrimination between employers. The 
statute would certainly be open to objection if a 
different rule of liability was applied to a railroad 
company than is applied to other employers under 
like circumstances and conditions. The hazards in- 
cident to the use and operation of railroads is a 
natural and reasonable classification, which justifies 
the exceptional legislation, for if the statute was not 
given that interpretation, and limited in its operation 



85 

to the protection of those engaged in the hazardous 
service, it could not be upheld. 

And again: 

Here, however, the service which Medaris was 
performing did not expose him to the hazards pecu- 
liar to the business of using and operating a rail- 
road. He was not at work on a railroad, and his 
injury was not caused by the operation of a railroad 
or the use of any railroad appliance. It is true there 
were railroad tracks near the place where he was at 
work, but no train was passing or near to the place 
where Medaris was at work at the time the injury 
was inflicted. It is true, also, that he was at work 
for a railroad company and upon the land of a rail- 
road company, but this does not entitle him to the 
benefits of the act. He can only recover by showing 
that the service in which he was engaged exposed 
him to the peculiar perils incident to the operation 
of a railroad. As the jury specially found, the work 
in which he was engaged involved no more risk or 
hazard than it would if the same work was being 
done for an individual at the same time and place. 

The benefits of the act can no more be claimed 
by him than they could by the carpenter who laid 
the floor in the office building or nailed the shingles 
on its roof. No stronger claim could be made for 
him than could for a person injured while hauling 
the rock from the quarry to the place where the 
curbing was to be set. As was held by the Supreme 
Court of Minnesota, one rule of liability can not be 
established for a railroad company as such and an- 
other for other employers under like circumstances 
and conditions. To avoid the imputation of class 
legislation, the distinction must be based upon a dif- 
ference in the nature of the employment. "But no 
just reason can be suggested why such difference 
should be founded, not on the character of the em- 
ployment nor on the dangers to which those employed 
are exposed, but on the character only of the em- 
ployer. We can see why the employer's liability 
should be greater when the business is that of opera- 



86 

ting a railroad, but can not see why one individual 
or corporation should be held to a rule of liability 
different from that applied to another when the em- 
ployment and its hazards are precisely the same. ' ' 

Then follows a number of authorities, which I will 
not read. 

It is difficult to see how the validity of the law 
can be sustained, unless it is interpreted, as was 
stated in Eailway Co. v. Haley, supra, to "embrace 
only those persons more or less exposed to the haz- 
ards of the business of railroading." We feel com- 
pelled to hold the plaintiff below was not engaged in 
that kind of service when the injury was inflicted, 
and therefore that no liability against the company, 
under the statute, arises in his favor. 

The Kansas statute was before the Supreme Court of 
the United States in the case of the Missouri Pacific Eail- 
way Co. v. Mackey, 127 U. S. 205. Mackey was a loco- 
motive fireman on one of the engines of the railroad com- 
pany, and was injured in a collision caused by the negli- 
gence of the engineer of another engine. If the statute 
was to be given any force whatever it was bound to be 
applied in favor of Mackey, because he was unquestion- 
ably engaged in a hazardous branch of the railroad serv- 
ice. The Supreme Court of the United States construed 
the statute in the light of the facts of that case, and held 
that it did not violate the Fourteenth Amendment of the 
Constitution of the United States, using this language in 
its opinion: 

But the hazardous character of the business of 
operating a railway would seem to call for special 
legislation with respect to railroad corporations, 
having for its object the protection of their em- 
ployees, as well as the safety of the public. 



87 

The same statute was again before the Supreme Court 
of the United States in Eailroad Co. v. Pontius, 157 U. S. 
209, and the argument made on behalf of the railroad 
company, that Pontius, a bridge builder, was not entitled 
to the benefits of the statute because it only applied to 
employes exposed to peculiar hazards incident to the use 
and operation of a railroad, was met by the court in these 
words : 

But the difficulty with this argument is that the 
State Supreme Court found upon the facts that, 
although the plaintiff's general employment was that 
of a bridge carpenter, he was engaged at the time 
the accident occurred, not in building a bridge, but 
in loading timbers on a car for transportation over 
the line of defendant's road; and Missouri Pac. Co. 
v. Haley (25 Kans. 35), Union Pacific R'y Co. v. Har- 
ris (33 Kans. 416), and Atchison, Topeka, etc., E. 
Co. v. Koehler (37 Kans. 463), were cited, in which 
cases it was held that a person employed upon a con- 
struction train to carry water with the men working 
with the train and to gather up tools and put them 
in the caboose or tool car; a section man employed 
by a railroad company to repair its roadbed and to 
take up old rails of its track and put in new ones, 
and a person injured while loading rails on a car to 
be taken to other portions of the company's road, 
were all within the provisions of the Act in question ; 
and the court said: "In this case the plaintiff was 
injured while on a car assisting in loading timbers to 
be transported over the defendant's road to some 
other point. The mere fact that the plaintiff's regu- 
lar employment was as a bridge carpenter does noc 
affect the case, nor does it matter that the road was 
newly constructed, nor whether it was in regular 
operation or not. The injury happened to the plain- 
tiff while he was engaged in labor directly connected 
with the operation of the road, and the statute ap- 
plies even though it should be given the construction 
counsel places on it." 



88 

The next statute is that of Minnesota, of 1887, Chapter 
13, of the General Laws of Minnesota. It reads as fol- 
lows : 

Every railroad corporation owning or operating 
a railroad in this State shall be liable for all damages 
sustained by any agent or servant thereof, by reason 
of the negligence of any other agent or servant 
thereof, without contributory negligence on his part, 
when sustained within this State, and no contract, 
rule or regulation between such corporation and any 
agent or servant shall impair or diminish such lia- 
bility: Provided, That nothing in this Act shall be 
so construed as to render any railroad company lia- 
ble for damages sustained by any employee, agent, or 
servant, while engaged in the construction of a new 
road, or any part thereof, not open to public travel 
or use. 

See, also, Eevised Laws, Minnesota, 1905, Sec. 2042. 

This statute has been construed many times by the 
Supreme Court of Minnesota, notably in the case of 
Lavallee v. R. Co., 40 Minn. 249, Johnson v. R. Co., 43 
Minn. 222, and Jemming v. R. Co., 104 N. W. 1079. 

In the Lavallee case, the opinion of the court, by Chief 
Justice Grilfillan, does not show the precise nature of 
Lavallee 's employment. The opinion does say, however, 
that he was injured through the negligence of fellow- 
servants. The court, after stating that the question for 
decision was whether the Minnesota statute included all 
employes, agents and servants of a railroad corporation, 
declared that it was evident that the statute could not be 
taken literally. After referring to the decisions of the 
court of last resort of other States which had enacted 
similar statutes, and referring to the Mackey case, the 
Minnesota court said: 



8 9 

Applying this test, it is impossible to avoid the 
conclusion that the statute, if construed as appellant 
claims it ought to be, would be class legislation, not 
applying upon the same terms to all in the same situ- 
ation, nor having any apparent natural reason for 
any distinction. 

The frequency and magnitude of the dangers to 
which those employed in operating railroads are ex- 
posed; the difficulty, sometimes impossibility, of es- 
caping from them with any amount of care, when 
they come ; the fact that a great number of men are 
employed, co-operating in the same work, so that no 
one of them can know all the others, their compe- 
tency, skill, and care, so that he may be said to volun- 
tarily assume the risk arising from the want of skill 
or care by any one of the number — are a sufficient 
reason for applying a rule of liability on the part of 
the employer to the employee so employed different 
from that ordinarily applied between master and 
servant. But no just reason can be suggested why 
such difference should be founded, not on the char- 
acter of the employment, nor of the danger to which 
those employed are exposed, but on the character 
only of the employer. We can see why the employ- 
ers' liability should be greater when the business is 
that of operating a railroad, but can not see why one 
individual or corporation should be held to a rule of 
liability different from that applied to another, when 
the employment and its hazards are precisely the 
same. 

That case was reaffirmed in the later case of Johnson 
v. E. Co. Johnson was engaged in repairing a railroad 
draw-bridge and was caught by the bridge when it swung 
to, being blown by the wind, because it had been negli- 
gently left unfastened. In that case the court said the 
statute did not apply to Johnson, and repeated a good 
deal of the reasoning in the Lavallee case. 

In the Jemming case, the last case I notice in Minne- 
sota, Jemming was a pitman, working a steam shovel in 
a pit, in the construction of a railroad, and the court said 



go 

that lie did not come within the purview of the statute 
because he was not engaged in a hazard peculiar to rail- 
roads. 

The statute of Indiana, which is very similar, though 
in different terms, has had a peculiar mutation. The 
statute declares, in express terms, that all corporations, 
except municipal, shall be liable as provided for in the 
Act. After ten years of construction, in which the statute 
had been applied or rejected as the facts varied in par- 
ticular cases, the Supreme Court of Indiana has com- 
paratively recently declared that that statute must be 
read as though it were written "any railroad company' ' 
or "the owner of any railroad" shall be liable, and that 
it did not apply to any corporation except a corporation 
owning a railroad, and applied to the owners of a rail- 
road company, whether incorporated or not incorporated. 

Chairman Stone: That Act also embraced indi- 
viduals. 

Mr. Warfield: Yes, sir; the owners of railroads, 
whether incorporated or unincorporated. 

I will simply cite to you gentlemen some instructive 
cases on that point, without reading from them : Southern 
Indiana R'y Co. v. Harrell, 68 N. E. 262, where the appli- 
cation of the statute was denied to a person injured by a 
stone in the erection of a railroad bridge ; I. & G. R. Co. 
v. Foreman, 69 N. E. 669, where a recovery was denied 
to an employe returning home from work on a work train 
and injured in a collision with another train; P., C, C. 
& St. L. R'y Co. v. Lightheiser, 78 N. E. 1033; and Bed- 
ford Quarries Co. v. Bough, 80 N. E. 529. 

It is significant to note that none of these statutes was 
declared unconstitutional because embracing more than 
the Legislature had a right to embrace in them, but they 
were all cut down by judicial construction to the limits 



9i 

that the Supreme Courts of those States held that the 
Legislature had the right to go in enacting such legisla- 
tion, instead of following the opinions of the Supreme 
Court of Mississippi, in Ballard v. Oil Co., and of the 
Supreme Court of the United States in the Howard and 
other cases cited by counsel in those cases, where the 
court refused to rewrite the statutes in order to make 
them constitutional, but held them void because they were 
too broad. 

I think it is only fair to say that there are Employers ' 
Liability statutes of some of the other States which have 
been given a broader construction than has been given to 
the statutes of the States to which I have referred, by the 
Supreme Courts of those States. That is notably true 
in the case of the State of Georgia. In one of the opinions 
of the Supreme Court of that State, to which reference 
was made this morning, the statute was held to apply to 
an employe fixing a chandelier in an office. There is quite 
a number of others. In Texas, the application of the 
statute has been latitudinarian. 

But I think the true interpretation of such statutes is 
declared in the opinions from Iowa, Kansas, Minnesota, 
and Indiana, to which I have referred, and I think we may 
safely say that, if the Fourteenth Amendment and the 
Fifth Amendment are to be given the same interpreta- 
tion for the purposes of this question, it would be the 
duty of the Supreme Court of the United States to hold 
in a case arising under this Federal Employers' Liability 
statute, as the Supreme Courts of Indiana, Minnesota, 
Iowa, and Kansas have held, namely, that this statute 
must be so construed as to apply only to those employes 
who are engaged in the extra-hazardous occupations con- 
nected with railroads; or that otherwise the courts will 
follow the precedent set in the Howard case, namely, of 



9 2 

holding that the Act is too broad and that they will not 
limit it to the breadth it should have had, but will reject 
it altogether. 

The only trouble I have is as to the proper answer 
to the other question, to wit, as to whether or not the 
Fourteenth Amendment and the Fifth Amendment mean 
the same thing; that is to say, whether the words found- 
in the Fourteenth Amendment, not found in the Fifth 
Amendment, "nor deny to any person within its juris- 
diction the equal protection of the laws," give to Congress 
the right to enact class legislation, such as the Fourteenth 
Amendment denies to the States the right to enact. That 
is the question upon which there is no direct authority. 
The Supreme Court, as far as I know, has never passed 
upon it. It is still an open question. But I think sound 
reason is in favor of imposing a like limitation upon 
Congress, under the Fifth Amendment, as is imposed 
upon the States by the Fourteenth Amendment. 

Mr. Humphrey: I think it is worth while to call at- 
tention to the fact that Mr. Justice Moody, in his dis- 
senting opinion, says there is nothing in this, at all. 

Chairman Stone: Bead that portion of the opinion. 

Mr. Humphrey (reading from 28 Supreme Court Ee- 
porter, page 162) : 

It is not necessary in this case to determine how 
far, if at all, the requirement from the States of the 
equal protection of the laws made by the Fourteenth 
Amendment is included in the requirement from the 
nation of due process of law made by the Fifth 
Amendment to the Constitution. It is enough to say 
that this statute complies with both. It is rather 
startling to hear that in enacting laws applicable to 
common carriers alone Congress has made a capri- 
cious and arbitrary classification. From time imme- 
morial the common law has set apart those engaged 
in that business as a peculiar class, to be governed 



93 

in many respects by laws peculiar to themselves. In 
separating carriers from those engaged in other in- 
terstate and foreign commerce, Congress has but fol- 
. lowed the ancient classification of the common law, 
based upon reasons so obvious that they need no 
statement. Whether the law should be made to ap- 
ply to all carriers or to carriers by railroad alone, or 
whether the employees should be classified according 
to the degree of danger which surrounds their em- 
ployment, is a matter of legislative discretion with 
which we have no right to meddle. See Union Pacific 
Railway Co. v. Mackey, ub. sup. 

Mr. Brownell: Mr. Justice White, in the Howard 
case, states (page 3 of the opinion) : 

Besides, the statute, it is urged, discriminates 
against all who engage as common carriers in inter- 
state commerce, since it makes them responsible with- 
out limit as to the amount to one servant for an 
injury suffered by the acts of a co-servant, even in 
a case where the negligence of the injured servant 
has contributed to the result, hence placing all em- 
ployers who are common carriers in a disfavored, and 
all their employees in a favored class. Indeed, it is 
insisted the statute proceeds upon contradictory prin- 
ciples, since it imposes the increased responsibility 
just stated upon the master presumably in order to 
make him more careful in the selection of his serv- 
ants, and yet minimizes the necessity for care on the 
part of the servant by allowing recovery, although 
he may have been negligent. 

But without even for the sake of argument con- 
ceding the correctness of these suggestions, we at 
once dismiss them from consideration as concerning- 
merely the expediency of the Act and not the power 
of Congress to enact it. 

Chairman Stone: If there is no further discussion, 
we will now pass from the consideration of Questions 4, 
5, and 6 to the consideration of Questions 7 and 8, which 
read as follows: 



94 

7. Assuming that the Fifth Amendment is equiv- 
alent or equal to the Fourteenth Amendment, then is 
the present Act void, either because (a) confined to 
railroads, or (b) embracing all interstate employes 
of interstate roads without regard to the character 
of service in which such employes are engaged? 

8. Assuming that to embrace all employes with- 
out regard to the character of service would render 
the Act void, will the court, in lieu of declaring the 
Act void, limit its application to such classes of em- 
ployes as could rightfully be embraced within its 
terms ? 

Mr. Lindley : May I make an observation on the as- 
sumption contained in the first part of Question 8? I 
suppose the assumption arises from the discussion which 
preceded, relative to Questions 4, 5, and 6. It does not 
seem to me, however, that it is a legitimate assumption 
that the prohibition against the Federal Government de- 
priving a person of property without due process of law, 
as contained in the Fifth Amendment, is equally as com- 
prehensive as the prohibition against the States that they 
shall not deprive a person of property without due pro- 
cess of law, nor deny to any person within their juris- 
diction the equal protection of the laws. 

If I may, I will give another illustration. Let us 
assume that a transfer company is unloading at a dock 
used jointly by a stage company and a railway company. 
Employes of both the stage company and the railway 
company are assisting the transfer company in unload- 
ing. They are handling interstate commerce, and while 
so engaged an employe of the railway company is injured 
by the joint negligence of an employe of the railway com- 
pany and of the stage company, and an employe of the 
stage company is likewise injured by the same act of 
joint negligence. By the Act in question, the injured rail- 
way employe is given a cause of action. The injured 



95 

stage employe is not given a cause of action. They are 
both engaged in interstate commerce ; they are both stand- 
ing on the same wharf, assisting in handling the same 
freight, except that some is to be shipped by stage and 
some to be shipped by railway. I think that under the 
decisions of the courts, if the Act in question were State 
legislation, the United States Supreme Court would say 
that, as to these two injured employes, the stage employe 
did not have equal protection of the laws; but I do not 
see how it could say that the stage employe was deprived 
of property without due process of law. The fact that 
he was not given a cause of action, while the injured rail- 
way employe was given a cause of action, did not take 
from him property, since neither possessed any right or 
cause of action, except as granted by the Act It seems 
to me clear that the framers of the Fourteenth Amend- 
ment intended, by the addition of the phrase "nor deny 
to any person within its jurisdiction the equal protection 
of the laws," to make the amendment more comprehen- 
sive and to cover something not covered by the Fifth 
Amendment. 

On the other hand, using the above illustration and 
looking at it from the standpoint of the employers, there 
may be plausibility in the argument that the Act deprives 
the railway of property without due process of law, for 
the reason that it requires it to reimburse its employes 
for injuries suffered, while it does not require the stage 
company, under identically the same circumstances, to 
so reimburse its injured employes. But assuming (sim- 
ply to express my opinion before I sit down) that the Fifth 
Amendment is equivalent to the Fourteenth Amendment, 
then I do not think the present Act is void as class legis- 
lation because confined to railway companies, but that it 
would be class legislation if held to apply to all employes 



96 

of railway companies without regard to the hazardous or 
non-hazardous character of the employment of said em- 
ployes. 

Mr. Keeble : I had an idea, when I left home, that I 
was coming here for the purpose of being instructed upon 
the strong points of attack we might make against this 
Act of Congress; in other words, that this assembly was 
going to prepare for war. However, all I have heard has 
rather inclined me to believe that I am to go home greatly 
impressed with the necessity of settling all cases arising 
out of the Employers' Liability Act, as soon as possible. 
It seems to me that if the gentlemen here who have made 
a careful study of this Act have succeeded in answering 
practically all the objections to it, we will not have a great 
deal of trouble in persuading the Supreme Court to follow 
their example. 

I have not prepared myself to acquiesce in all the 
views that have been expressed on that proposition. I 
think the purpose of the Conference should be, mainly, 
to outline all of the reasonable grounds upon which this 
Act may be contested. A great many of us have often 
thought that there was no possible ground to lose a case, 
and have found that the court has found ample ground 
and ample opportunity for us to lose; and sometimes it 
has been our lot, when we did not believe that we had 
any opportunity to win a case, to find, by putting ques- 
tions to the court, that the court had found some way for 
us to win. That is rather unusual, I admit, but it some- 
times happens. 

This is one of the questions concerning which, and 
this is one of the times when, we should adopt the policy 
of raising all the questions we can, if we are going to 
make any fight which is worth while. We should present 
all the reasons we can to the court of last resort, that 



97 

tend to sustain the first and every other proposition in- 
volved in this case. 

I have been rather disappointed to learn that every 
one who has spoken here seems to concede that Questions 
1 and 2 are utterly hopeless. I must confess it does not 
look as inviting as it might, but, nevertheless, I do not 
believe it is a hopeless proposition. 

I believe the discussion here to-day has shown how 
difficult it is going to be for any rule of conduct to be laid 
down in interpreting this Act, without trenching upon 
some of the conceded rights of the States, and that this 
difficulty will have the effect upon some of the members 
of the court of inclining them to reverse their former 
decision. 

I think we should appoint a committee to do nothing 
else but to prepare a statement of the questions concern- 
ing the powers that are conceded by everybody to belong 
to the States, and thus show the court how an adherence 
to the doctrine announced will destroy these conceded 
powers and take from the States rights that have hereto- 
fore been regarded as exclusively matters to be regulated 
by State legislation. Therefore, I do not think we ought 
to abandon propositions 1 and 2. I agree with Mr. Brow- 
nell on those propositions. 

On the other hand, I do not think we gain a great deal 
by insisting upon that view of Question 3 which has been 
set up by Mr. Littlefield in his report. I agree with Mr. 
Helm, Mr. Cary and others, that that is not a very good 
point, and I do not believe we can make much out of it. 

As to the other questions, I have been disappointed. 
I had expected to hear some discussion to-day upon the 
question whether the Fifth Amendment is as broad as 
the Fourteenth Amendment. If we get past propositions 
1 and 2, if we concede that that is settled law by the de- 



9 8 

cision of the court in the Howard case, then, unless we 
can interpret the Fifth Amendment to the Constitution to 
mean all that the Fourteenth Amendment to the Consti- 
tution means, we have no hope to gain. 

It seems to me that we ought to spend more time, not 
necessarily here, but elsewhere, in striving to develop an 
argument, which I believe can be done, supporting the con- 
tention that the Fifth Amendment, as to the doctrine of 
due process of law, is broad enough to include the propo- 
sition that anything which will discriminate against one 
class of people in this country, is taking their property 
without due process of law; or that "due process of law" 
means the equal protection of the laws, which covers all 
people alike. Unless we do that, we may just as well give 
up the fight. And so I am disappointed in not hearing 
more on that proposition. 

I have not been able to find any case, except the Ten- 
nessee case in 89 Tenn., decided by Mr. Ed. Baxter, 
known to you (as special judge), in which, as I recall it, 
he holds that the two amendments are similar in mean- 
ing, broad enough to cover all the claims that might be 
made under them. 

If we assume that proposition, and it is necessary for 
us to assume it or else quit, let us come down to Questions 
7 and 8. 

I have only a few more words to say, and they are in 
regard to this Question 7. Suppose we assume that the 
Fourteenth Amendment is the same as the Fifth Amend- 
ment, or that the Fifth Amendment is as broad as the 
Fourteenth Amendment, and then we take the position 
that these State courts have taken, which has been stated 
by Mr. Warfield, that the court will not declare the Act 
unconstitutional, but will merely construe it in different 
cases and limit it to the occupations that are hazardous. 



99 

We have accomplished nothing, for the reason that a 
large and overwhelming number of our accidents arise 
out of a dangerous occupation. It would not amount to 
a very great deal to us in a year whether that was con- 
strued to apply only to those engaged in hazardous occu- 
pations or whether it embraced them all ; it would be com- 
paratively insignificant. 

On the other hand, we are face to face with the prop- 
osition that if they should adopt that construction, it 
would be an ever uncertain and changing rule of law. 
The court would say to-day that it would embrace this 
occupation, and we would stand on that, and to-morrow 
the court would say that it would embrace another less 
hazardous occupation, and there would be no place upon 
which we could put our feet at all and say that under this 
state of facts there is no liability ; it would be left always 
for the court to determine. 

So, in my opinion, we ought to take the position that 
the Supreme Court ought not to follow the State statutes 
that have read into them a classification by employment. 
I think we ought to take the position that if the Supreme 
Court of the United States, in looking at the question be- 
fore them in the Howard case, could not presume that 
Congress only meant that Act to apply to interstate em- 
ployes, or employes engaged in interstate commerce, that 
court will not say that they will presume that Congress 
only intended to give a remedy to employes engaged in 
the more hazardous work of railroading. 

If there was a time when the Supreme Court of the 
United States would have been justified in saying that 
Congress intended that Act only to apply to a particular 
division of employes, it certainly would be the time when 
it must assume that Congress knew that it could not apply 
to all. And I do not believe that the Supreme Court 



IOO 



of the United States, in the light of the Howard case 
and the Trade Mark cases, is going to undertake to con- 
strue the Act so as to leave an ever-changing and ever- 
shifting standpoint, by which they can from time to time 
undertake to express by judicial decision, the will of Con- 
gress, which can only be properly expressed by an enact- 
ment. Therefore, I am in favor of standing on that prop- 
osition and fighting it out on that proposition. 

I think, when that question comes along, it will be 
ample time to discuss it with them as to whether they 
will interpret the Act to apply only to certain employes 
or to all of them. I think we would weaken our case 
very much to take, in the same argument and in the same 
case, the opportunity to attack the interpretation of the 
State courts of such an Act, and therefore to make classi- 
fications for this. 

So I think that we ought to fight upon these proposi- 
tions : First, 1 and 2 again ; second, that the Fifth Amend- 
ment is as broad as the Fourteenth Amendment; and, 
third, that this is an unreasonable classification because 
if makes no distinction between employes engaged in 
extra-hazardous work of the railroad and those engaged 
in work that is not extra-hazardous. 

Unless we can put our feet down upon that classifica- 
tion, and put them down strong, I do not see that we have 
much hope. I am fully aware that all the uncertainties, 
and all the odds are against us, not the least of which is 
that courts reflect the public idea and the public senti- 
ment; and we are no longer discussing an evolution of 
the common law or an evolution of the civil law on the 
question of master and servant, but we are face to face 
with a widespread demand that something along this line 
be done. And yet I believe there is room for hope on 
all three of those propositions, and certainly on the last 
two. 



IOI 

Mr. Brownell: I entirely agree with everything Mr. 
Keeble has said, except that I regret that he has so little 
confidence in the third proposition. Without stopping to 
discuss that, I wish to express the opinion that that prop- 
osition can be supported by strong arguments based both 
on reason and authority. 

With respect to the effect of the Fifth Amendment and 
the constitutional restraint upon the powers of Congress 
to pass laws that are discriminatory, I am of the opinion 
that Congress has no power to enact a regulation of com- 
merce that unjustly discriminates between classes. I do 
not know that it is necessary to claim that the provision 
of the Fifth Amendment prohibiting Congress from pass- 
ing any law that deprives any person of life, liberty or 
property without due process of law, is in all respects as 
broad as the Fourteenth Amendment, which prescribes 
that States ' i shall not deprive any person of life, liberty, 
or property without due process of law" or "deny to any 
person the equal protection of the laws ' ' ; but I do think 
that Congress is prohibited from enacting a law or regu- 
lation that denies equality. 

I think this question is one of the most important that 
we have to consider, not merely with reference to the 
Employers' Liability Act, but with reference, also, to a 
good many other acts of Congress that have been passed 
recently, and others that are now in course of incubation. 
While it is to be assumed that the people in adopting the 
Fourteenth Amendment had some reason for adding the 
words which do not appear in the Fifth Amendment, yet 
it does not seem to me to follow that "the equal protec- 
tion of the laws" is not secured by the Constitution 
against congressional encroachment, or that the Fifth 
Amendment must be construed as not affording such a 
guaranty. 



102 

Looking at the matter historically, there is ample 
justification for the proposition that this clause in the 
Fifth Amendment was designed to protect the people 
against the encroachment of Federal power. It was 
stated by the Federal courts in a number of cases, before 
the adoption of the Fourteenth Amendment, as it was 
stated in the constitutional debates, that "due process of 
law" was equivalent to "the law of the land" that was 
secured by the Magna Charta and that was known and 
secured to the people of the Colonies under the Articles 
of Federation. 

In the well-known case of Murray-Lesees v. Hoboken, 
in 18 Howard, the court urged that point and said: 

The words "due process of law" were undoubt- 
edly intended to convey the same meaning as the 
words "by law of the land" in Magna Charta. Lord 
Coke, in his commentary on these words (2 Inst. 50), 
says they mean "due process of law." 

On several occasions, in discussing the meaning of the 
law of the land, prior to the adoption of the Fourteenth 
Amendment, it was stated that the words "equal pro- 
tection of the laws" meant equality under the law, and 
that protection of that equality was secured by due pro- 
cess of law. 

In an early case in Massachusetts, the Supreme Court, 
in passing upon the validity of an Act of the Massachu- 
setts Legislature which required the consideration of the 
fundamental rights secured by the law of the land, stated 
that it is manifestly contrary to the best principles of 
civil liberty and natural justice, and not in accord with 
the spirit of our Constitution and laws, that any one citi- 
zen should enjoy privileges and advantages which are de- 
nied to all others under like circumstances, or that any 
one should be subject to laws from which all others under 






103 

like circumstances are exempt. This was in Holden v. 
James, in 11 Mass. 

Any regulation of Congress that is unjustly discrimi- 
natory would not be the law of the land, would not be 
1 ' the due process of law. ' ' Even if it were not prohibited 
by the Fifth Amendment, it would be a violation of the 
principles of law which are at the very basis of the Fed- 
eral Government, and I believe that the courts will hold, 
and will never hold to the contrary, that the Federal Con- 
gress, in the exercise of the power committed to its care, 
and particularly in the regulation of commerce, can not 
pass any law or regulation denying that equality under 
the law and equal protection of the laws, which have 
always been the law of our land. 

This question has been raised in the case involving 
the validity of the commodities clause of the Interstate 
Commerce Act; and within the last few weeks I listened 
with a great deal of interest to an argument in that case, 
when the Attorney-general of the United States at- 
tempted to meet the proposition that the Act, in prohibit- 
ing the carrying of commodities other than timber and 
some other special products, violated the Fifth Amend- 
ment, but he was unable to cite any authority and was 
unable to advance any reason or argument, which I think 
recommended itself to the judgment of the large number 
of counsel who participated in that case at the time, in 
support of his contention that Congress could adopt regu- 
lations of commerce, even although they denied to some 
persons the equal protection of the laws. I think we 
should maintain, to the best of our ability, the claim that 
Congress has no such power, and I believe it will be sus- 
tained. 

I wish to call attention to another question which may 
be in this case: Is a corporation a "person" within the 



104 

meaning of that word as used in the Fifth Amendment, 
that can avail itself of the privileges and exemptions and 
immunities of that amendment? 

In the case of Adair v. United States, Mr. Justice 
Harlan, in delivering the opinion of the court, made use 
of this rather significant remark: 

Without stopping to consider what would have 
been the rights of the railroad company under the 
Fifth Amendment, had it been indicted under the Act 
of Congress, it is sufficient in this case to say that as 
agent of the railroad company and as such responsi- 
ble for the conduct of the business of one of its de- 
partments, it was the defendant Adair's right — and 
that right inhered in his personal liberty, and was 
also a right of property — to serve his employer as 
best he could, so long as he did nothing that was rea- 
sonably forbidden by law as injurious to the public 
interests. 

There have also been several other cases where one 
or more of the Justices have taken occasion to raise the 
question and to indicate that they regarded it as unsettled 
whether or not a corporation was such person. It did not 
seem to me that this was an open question. I had sup- 
posed that the word "person' ' in the Fifth Amendment, 
is as broad, and has the same meaning, as the word " per- 
son" in the Fourteenth Amendment. As you are all 
aware, it has frequently been held that the word "per- 
son" as used in the Fourteenth Amendment, includes 
corporations. It was so held in the Knight case, 165 
U. S. ; and in the Colorado & Northwestern Eailroad case, 
Mr. Justice Brewer holds that corporations are persons 
within the meaning of the Fourteenth Amendment, and 
states that it is well settled, citing a number of decisions 
in support of that proposition. I refer to this, in view 
of the somewhat significant remark of Mr. Justice Harlan 
in the Adair case. 



io 5 

Mr. Campbell : Have you ever considered that there 
can be no doubt that the Supreme Court can not sustain 
the commodities clause without determining the question 
as to the Fifth Amendment? They can set it aside, how- 
ever, on other grounds. 

Mr. Brownell: It seems to me that it is necessarily 
involved, but I think they will set it aside on broader 
grounds. The same question (and I think it is an im- 
portant one) will arise in connection with some of the 
other legislation which I think has been scheduled for 
consideration. 

Mr. Warfield: I did not say all that I could have 
said on the question of the equality of the Fifth and Four- 
teenth Amendments, that they mean the same thing, be- 
cause I hoped to be able to induce Mr. Hamilton to state 
to the Conference the views which he has heretofore em- 
bodied in a letter I have had the privilege of reading. 
Mr. Hamilton has just informed me that he did not bring 
a copy of that letter with him, but he has given me per- 
mission to read to the Conference from that letter, and 
I will do so. 

SCOPE OF THE FIFTH AMENDMENT AND 
CLASS LEGISLATION. 

Passing now to the second objection to the con- 
stitutionality of this Act, it is claimed that the fail- 
ure of Congress to restrict its operation to the extra- 
hazardous risks of the railroad business is class legis- 
lation, based upon an arbitrary and unreasonable dis- 
tinction, denying the railroads due process of law 
and depriving them of the equal protection of the 
laws, contrary to the fundamental principle that all 
laws shall be equal in their effect, and to the pro- 
visions of the Fifth Amendment to the Constitution 
of the United States. In order to sustain this argu- 
ment it must be conclusively demonstrated that the 



166 

Federal Government was not granted the power to 
deny to any person the eqnal protection of its laws 
by the Constitution, or that the phrase "nor shall 
any person be deprived of his property without due 
process of law" in the Fifth Amendment is so broad 
and far-reaching in its effect as to include also the 
further clause which is contained in the Fourteenth 
Amendment to the Constitution of the United States, 
which says that no State shall deny to any person 
within its jurisdiction the equal protection of its laws. 
In other words, does the Fifth Amendment, by saying 
the United States shall not deprive any person of 
property without due process of law, forbid it to 
legislate so as to deny to any person the equal pro- 
tection of the laws! If the Fifth Amendment can 
be construed to forbid unequal or partial legislation, 
or if there can be found no warrant for such laws 
elsewhere in the Constitution, then the second objec- 
tion to the constitutionality of this Act would seem 
to be a very strong one, for it can not be denied that 
it imposes a liability upon railroads which it does 
not impose under similar circumstances and condi- 
tions upon any other corporation or person. 

The first question to be determined is whether the 
general government has the power to pass a law de- 
nying to all citizens within its jurisdiction the equal 
protection of the laws. The Federal Government is 
one of enumerated powers, and it can exercise no 
power except that which is expressly granted to it 
by the Constitution. The Constitution is based upon 
the fundamental law of the land as expressed in the 
Declaration of Independence. (Monongahela Navi- 
gation Co. v. United States, 148 U. S. 324.) In other 
words, the Declaration of Independence is insepara- 
bly connected with the organic law of the United 
States. The most prominent declaration contained 
therein is that ' ' All men are created equal, that they 
are endowed by their Creator with certain inalienable 
rights, that among these are life, liberty, and the pur- 
suit of happiness, that to secure these rights govern- 
ments are instituted among men." With a view to 
providing a government based upon these principles, 
the Convention of 1787 was held and a Constitution 
was prepared, guaranteeing certain powers to the 



107 

central government, expressly reserving* all others to 
the State governments. In this instrument there was 
no power given either to deprive persons of property 
without due process of law or to deny to any person 
the equal protection of the laws. To do either of the 
above things would be contrary to all the funda- 
mental principles of right and justice upon which the 
Constitution was based. Therefore, we can safely 
say that Congress has no express power in the Con- 
stitution to deny to any person the equal protection 
of its laws, or to deprive any person of due process 
of law. In order, however, to quiet the apprehension 
of many, and in some measure to take the place of a 
Bill of Rights, soon after the ratification of the Con- 
stitution there were adopted ten amendments, among 
them the Fifth, which provides, among other things, 
that no person shall be deprived of his property with- 
out due process of law. The object of these amend- 
ments was to settle by positive negation the proba- 
bility that the central government might assume and 
might be held to possess "the power to trespass upon 
those rights of persons and property which by the 
Declaration of Independence were declared to be in- 
alienable rights." (Monongahela Nav. Co. v. U. S., 
148 U. S. 325.) 

The possibility of so radical a departure from the 
basic principles upon which the government was 
founded, as to permit the passage of laws that were 
not equal in their effect upon all persons was not 
contemplated. It never occurred to the framers of 
the Constitution that the Federal Government, cre- 
ated by the people, could so far exceed the powers 
impliedly granted it as to pass laws which would bear 
more heavily upon one class of citizens than upon 
another; in other words, the very object in making 
the Federal Government one of limited powers was 
to prevent the passage of just such laws. It may, 
therefore, be conclusively asserted that no such 
power was thought to be lodged in the Federal Gov- 
ernment at the time of the passage of the first ten 
amendments. 

Admitting, however, for the sake of argument, 
that such power may be found there, another ques- 



io8 

tion arises. Does not the denial of equal protection 
of the laws amount to a deprivation of property with- 
out due process of law, and is it not, therefore, cov- 
ered by the terms of the Fifth Amendment? 

As a necessary incident to determining the scope 
of the Fifth Amendment, an examination of the de- 
cisions prior to the adoption of the Fourteenth 
Amendment, and a consideration of the views enter- 
tained as to its scope at the time of the passage of 
the latter by members of Congress, is very pertinent. 

As I have said above, it is to be supposed that 
when the Fourteenth Amendment to the Constitu- 
tion of the United States was proposed, it was the 
common understanding of the legal profession and 
of the courts that under the Fifth Amendment all 
congressional laws had to be equal in their opera- 
tion, substantially similar conditions existing; all 
persons were to come under the same general law, 
and that you could not make one law for one man 
and another law for another man when the conditions 
were substantially the same. 

The Fourteenth Amendment appears to have 
originated in the minds of Thaddeus Stevens and 
John A. Bingham, of Ohio. In December, 1865, they 
both introduced resolutions in Congress. (Vol. 37, 
Congressional Globe, Part 1, page 10, December 5th.) 
The matter was discussed on the 8th of May, 1866. 
(Vol. 37, Congressional Globe, Part 3, pages 24 to 
59.) 

In this discussion Hon. Thaddeus Stevens spoke 
as follows, the proposed Fourteenth Amendment hav- 
ing been reported by the Committee on Eeconstruc- 
tion as it now stands : 

"Let us now refer to the provisions of the pro- 
posed amendment: The first section prohibits the 
States from abridging the privileges and immunities 
of the citizens of the United States or unlawfully de- 
priving them of life, liberty or property or denying 
to any person within their jurisdiction the equal pro- 
tection of the laws. I can hardly believe that any 
persons can be found that will not admit that every 
one of these provisions is just. They are all asserted 



109 

in some form or other in our declaration or organic 
law, but the Constitution limits only the action of 
Congress and it is not a limitation on the States. 
This amendment supplies that defect and allows the 
Congress to correct the unjust legislation of the 
States, so far that the law which operates upon one 
man shall operate equally upon all. Whatever law 
punishes a white man for a crime shall punish the 
black man in precisely the same way, and to the same 
degree. Whatever protects the white man shall af- 
ford equal protection to the black man. ' ' 

It will be noted here that Mr. Stevens intimates 
that the Declaration of Independence is a part of our 
organic law. This is stated even more forcibly in the 
case of Monongahela Nav. Co. v. U. S., 148 IT. S. 325. 

The only other discussion of this amendment that 
I have been able to find was on May 23, 1866 (Vol. 
37, Congressional Globe, Part 3, p. 2766), when Sen- 
ator Howard, member of the Committee on Eecon- 
struction, and apparently in charge of the matter, 
spoke as follows : 

"The last two clauses of the first section of the 
amendment disable a State from depriving not mere- 
ly a citizen of the United States, but any person who- 
ever he may be, of life, liberty or property without 
due process of law, or denying to him the equal pro- 
tection of the law of the State. This abolishes all 
class legislation in the States and does away with the 
injustice of subjecting one caste of persons to a code 
not applicable to another. ... It will, if adopted 
by the States, forever disable every one of them from 
passing laws trenching upon those fundamental 
rights and privileges which pertain to citizens of the 
United States and to all persons who happen to be 
within their jurisdiction. It establishes equality be- 
fore the law and gives to the humblest, the poorest, 
the most despised of the race the same rights and 
the same protection before the law as it gives to the 
most powerful, the most wealthy or the most 
haughty. That is republican government as I under- 
stand it, and the only one which can claim the praise 



no 

of a just government. Without this principle of 
equal justice to all men and equal protection under 
the rules of law there is no republican government 
and none that is really worth maintaining. ' ' 

Again, on June 5, 1866 (37 Congressional Globe, 
Part 4, page 2961), he said: 

' ' It seems to me that there can be no valid or rea- 
sonable objection to the residue of the first proposed 
amendment, l Nor shall any State deprive any person 
of life, liberty or property without due process of 
law, nor deny to any person the equal protection of 
the law. ' It is the very spirit and inspiration of our 
system of government, the absolute foundation upon 
which it is established. It is essentially declared in 
the Declaration of Independence and in all the pro- 
visions of the Constitution. Notwithstanding this, 
we know that State laws exist, and some of them of 
very recent enactment, in direct violation of these 
principles. Congress has already, shown its desire 
and intention to uproot and destroy all partial State 
legislation in the passage of what is called the Civil 
Eights Bill. The power of Congress to do this has 
been doubted and denied by persons entitled to high 
consideration. It certainly seems desirable that no 
doubt be left existing as to the power of Congress to 
enforce principles lying at the very foundations of a 
republican government, and I can not doubt but that 
every Senator will rejoice in aiding to remove all 
doubt upon the power of Congress." 

The lack of extended discussion of this amend- 
ment is presumptive evidence that the opinion of the 
Senators and Eepresentatives was that the Four- 
teenth Amendment did not create any further limita- 
tion upon State action than those that already ex- 
isted upon the Federal Government in the Fifth 
Amendment and cognate clauses. 

It is evident that the old and prominent lawyers 
and judges of reconstruction time were saturated 
with the idea that every man in the community under 
similar circumstances was to be under the same law, 



Ill 

and it was their great purpose in the Fourteenth 
Amendment to bring to bear against State action the 
same prohibition they believed to exist in the Fifth 
Amendment against congressional action. They had 
no idea that there was any new principle being ap- 
plied by them to the States, nor did they suppose they 
were doing anything more in the Fourteenth Amend- 
ment as to the States than enacting what was already 
embodied in the Fifth Amendment as to Congress. 

While the Government of the United States was 
one of limited powers, it must be remembered that 
the only limitation upon the powers of the States was 
the Constitution of the United States. The action of 
the States was unrestrained, save as to the power 
which they had voluntarily conceded to the Federal 
Government. Before the passage of the Fourteenth 
Amendment they could enact class legislation, or 
deny the equal protection of their laws, and, in fact, 
some of them had already done so. 

The term "due process of law" or "law of the 
land," as used in the Federal Constitution, was un- 
derstood to be based upon the principles of equality 
and justice which were the fundamental law as re- 
garded the Federal Government. These principles 
forbade the passage of any law which should impose 
unequal burdens upon the same class of persons sim- 
ilarly situated ; in fact, partial or unequal laws were 
absolutely beyond the contemplation of the Federal 
Constitution, and, therefore, at the time of the pas- 
sage of the Fifth Amendment the phrase "due pro- 
cess of law" was considered a sufficient restraint 
upon the Federal Government to prevent the passage 
of any such unequal or partial laws. 

The term "due process of law" as applied, how- 
over, to each State would, or might, mean the funda- 
mental law or principles of equality and justice, as 
understood and applied in that State, and these prin- 
ciples of equality and justice, as construed in that 
State, upon which the fundamental law was based, 
might not be in accordance with the same principles 
as applied to the Federal Government, in which case 
the words "due process of law" would not be suffi- 
cient to restrain the legislative power of the States. 



112 

Moreover, it was thought that there were not only 
some possible, but probable, acts by the States which 
might discriminate in some form or other, not neces- 
sarily by laws, but by administrative or perhaps ju- 
dicial actions, against a particular class, and the 
words "nor deny to any person within its jurisdic- 
tion the equal protection of the laws' ' were added, 
not because they were not covered by the words "nor 
deprive any person of life, liberty, or property, with- 
out due process of law," but to make it so that the 
States could not by any device or contrivance evade 
the principle that was embodied in the latter phrase. 
What was feared by Mr. Stevens and Mr. Howard 
was this: Congress was about to admit the recon- 
structed States, one after another they expected to 
come in again, and Congress was afraid after they 
came in they might take such action as might nullify 
the action of the Civil Eights Act, which Congress 
the month before had passed. They, therefore, de- 
sired to make assurance doubly sure by shutting off 
every possible chance of class legislation. 

The authorities which can be cited in support of 
the above position are very scarce; in fact, there 
seem to be none directly in point. 

Judge Catron, afterwards on the Supreme bench, 
defines the "law of the land" or "due process of 
law" as follows: 

"What is "the law of the land?" This court on 
two occasions and on the most mature consideration 
has declared the clause 'law of the land' means a 
general public law equally binding upon every mem- 
ber of the community. The rights of every indi- 
vidual must stand or fall by the same rule of law 
that governs every other member of the body politic 
or land under similar circumstances, and every par- 
tial or private law which directly proposes to destroy 
or affect individual rights does the same thing by 
affording remedies leading to similar consequences 
is unconstitutional and void. Were it otherwise odi- 
ous individuals or corporate bodies would be gov- 
erned by one law and the mass of the community and 
those who made the law, by another, whereas a like 



"3 

general law affecting the whole community equally 
could not have been passed. (Bank v. Cooper's Se- 
curities (Tenn.) 

"The clause 'law of the land' in our Constitu- 
tion means a general public law, equally binding 
upon every member of the community under similar 
circumstances, and every partial or private law which 
directly proposes to destroy or affect individual 
rights or does the same thing by affording remedies 
leading to similar consequences is unconstitutional 
and void. (Wallay's Heirs v. Kennedy, 2 Yerg. 
(Tenn.) 554.) 

' ' The privileges and immunities of citizens of the 
United States protected by the Fourteenth Amend- 
ment are privileges and immunities arising out of 
the nature and essential character of the Federal 
Government, and granted or secured by the Consti- 
tution, and due process of law and the equal protec- 
tion of the laws are secured if the laws operate on 
all alike, and do not subject the individual to an arbi- 
trary exercise of the powers of government. (Dun- 
can v. Missouri, 152 U. S. 377.) 

"Law is something more than mere will exerted 
as an act of power. It must not be a special rule for 
a particular person or a particular case, but in the 
language of Mr. Webster in his familiar definition, 
'the general law, a law which hears before it con- 
demns, which proceeds upon enquiry and renders 
judgment only after trial,' so 'that every citizen shall 
hold his life, liberty, property, and immunities under 
the protection of the general rules which govern so- 
ciety, ' and thus excluding, as not due process of law, 
acts of attainder, . . . acts directly transfer- 
ring one man's estate to another, legislative judg- 
ments and decrees, and other similar special, partial, 
and arbitrary exertions of power under the forms of 
legislation. (Hurtade v. California, 110 U. S. 536.)" 

Whenever a case of "novel impression" arises 
in which the power granted under the Constitution 
is questioned, it is necessary to rely on the funda- 
mental principles underlying the Federal Govern- 
ment, supported by such dicta as may be found ; and 



ii4 

such is the case before us. I believe, however, upon 
a favorable state of facts that the Supreme Court 
would hold that there was no power in Congress to 
pass laws denying to any person the equal protection 
of the laws. 

Having satisfied our minds on that point it be- 
comes necessary to determine whether the Employ- 
ers' Liability Law really denies the equal protection 
of the laws; that is, whether the classification pro- 
posed by the new Act is a reasonable and not an 
arbitrary one. The best point of view from which 
to approach this question is from that of the decided 
cases, bearing upon State legislation of the same 
kind, which has been attacked as being contrary to 
the provisions of the Fourteenth Amendment. 

The leading case on this point is that of the Gr. 
C. & F. E'y Co. v. Ellis, 165 U. S. 150, where the 
Supreme Court declared a State statute void which 
arbitrarily classified railroad companies exclusively, 
because it violated the Fourteenth Amendment to the 
Constitution of the United States. 

The authorities on this subject have been exhaust- 
ively collated by Mr. Benjamin D. Warfield, in his 
statement before the Judiciary Committee in Con- 
gress, and they are absolutely convincing. He clearly 
establishes the proposition that no State statute do- 
ing away with the doctrine of fellow-servants and 
making railroads, as a class, liable for injuries re- 
sulting from the negligence of employees, has been 
upheld by the Supreme Court, unless it was confined 
by its terms or by the judicial interpretation of its 
State Supreme Court, to the extra-hazardous risks 
of the railroad business. 

Minn. Iron Co. v. Kline, 199 U. S. 593. 
Tullis v. L., E. & W. E. Co., 175 U. S. 348. 
E. E. Co. v. Pontius, 154 U. S. 209. 
Mo. Pac. E'y Co. v. Mackey, 127 U. S. 205. 

I have, therefore, reached the conclusion that the 
new Employers ' Liability Act is unconstitutional, be- 
cause it is class legislation, denying to railroad ; cbm- 
mon carriers the equal protection of the laws, which 



**5 

is forbidden by the fundamental principles under- 
lying our government and in particular by the terms 
of the Fifth Amendment to the Constitution. 

Mr. Trabue: I want to make the suggestion that in 
certain of the cases, as I now recall, in 99 U. S. (or 138 
U. S.), it is held that notwithstanding there is a clause 
in the Constitution forbidding the State governments' 
impairing the obligation of contracts, yet the General 
Government has no such power, no such power ever hav- 
ing been granted to that government. 

Chairman Stone : The Supreme Court of the United 
States has decided that Congress may incidentally do so, 
although it may not legislate directly to impair the obli- 
gation of a particular contract. If it is merely incidental, 
the Act is valid. I refer you to the Legal Tender cases, 
for instance. 

Adjourned till to-morrow, Tuesday, July 14, 1908, at 
9 :30 a. m. 



SECOND DAY'S SESSION. 

July 14, 1908—9 :30 a. m. 

The Conference was called to order by the Chairman. 

Chairman Stone : We progressed yesterday as far as 
Question 9 of the list of questions we had under dis- 
cussion. 

9. Assuming that such limitation by construction 
is made, what employes can be considered as engaged 
in occupations of such peculiar hazard as to justify 
legislation in their behalf? 

Are there any remarks upon that question. If not, we 
will proceed to Question 10, which is as follows : 



n6 

10. When can a railroad be said to be ' i engaging 
in interstate commerce ' ' within the terms of the Act 1 

It seems to me that Question 9 is one of considerable 
importance, and if we could have some discussion of it 
it might be much better than passing it over without any 
at all. 

Mr. Warfield: Inasmuch as that question was under 
consideration at a preliminary conference of counsel held 
at the time we were before the Congressional Committee, 
it might not be amiss to state the conditions that existed 
there. It was the intention of some of us to contend that 
only those actually engaged in train operations were em- 
braced in extra-hazardous employment, that is to say, the 
hazards peculiar to railroads, but not any other business. 
It was then suggested by somebody, possibly by Judge 
Humphrey, that a switchman was unquestionably engaged 
in a hazardous employment, and that when he was en- 
gaged in making up or breaking up an interstate train 
he ought to be embraced. An amendment was therefore 
offered, but disregarded by the committee, suggesting 
that those employes who were engaged in train operations 
and train service should be those on trains and those 
engaged in the making up and breaking up of trains. We 
thought that was the proper place to have that line drawn. 

Mr. Dickinson: Have you considered the question 
whether or not an interstate train has performed its jour- 
ney when it reaches the place where it is broken up, and 
after that is to be considered as a local matter? That is 
as important a question in this Act as it is in the one 
regulating the hours of employment. If an interstate 
train, while being broken up, is still engaged in interstate 
commerce, then every switchman and yardman would 
come under the operation of that Act in regard to the 
sixteen-hour employment feature. It has been held by 






ii 7 

some counsel of railroad companies, who have considered 
the question of when the journey is ended, that when it 
is turned over to be broken up it is no longer a train 
engaged in interstate commerce. That point of differen- 
tiation is an exceedingly important one, even more im- 
portant when we consider it in connection with the Hours 
of Service Law than in connection with the Employers' 
Liability Act. 

Mr. Warfield: I may say that is the view that was 
insisted upon by some of us, but other members of the 
committee thought it would be narrowing it so much that 
we could not hope to get it in that shape, and that we had 
better offer a more liberal amendment. But it was my 
view, and that of some of the others, that it was only 
those employes who were actually on a train that went 
from one State to another State, that should be embraced 
by the statute, and not those who were merely instru- 
mental in making up the train or in breaking it up. 

Mr. Cumming: In making that distinction, I would 
like to ask whether you considered the status of a train. 
You spoke of an interstate train. Did you consider a 
train that was made up entirely in the State and which 
was run entirely within the State, and yet might have 
interstate freight on it! Assume that as far as the mere 
physical road and physical train are concerned, they are 
intrastate, and yet suppose that it is a train which has 
upon it some interstate freight or passengers. 

Mr. Warfield: We thought that ought to be consid- 
ered an intrastate train. We were considering trains, the 
crews of which ran from one State to another and the 
engine and cars of which ran from one State to another, 
and not a train that might merely have interstate pas- 
sengers or interstate freight upon it, but both of whose 
termini were in a single State. I thought we ought to 
classify such a train as an intrastate train. 



n8 

Mr. Cumming : I hope that is the correct view of it. 

Mr. Cary : What about the case of the United States 
v. Colorado & Northwestern, in your theory? 

Mr. Warfield : That case had not then been decided, 
and we have not yet had the opinion of the court of last 
resort, as to whether the decision of the Circuit Court of 
Appeals in the Colorado case is the law. One of the three 
judges who sat in the court in that case dissented from 
that opinion. 

Chairman Stone : Is it your opinion still that a crew 
on a train that merely operates between points in one 
State, but that carries interstate traffic, is not engaged 
in interstate commerce! 

Mr. Warfield : I will put a concrete case. We have a 
local passenger train which runs between Louisville, Ky., 
and Bowling Green, Ky. Now, it might be that there 
would be a passenger on that train running to Bowling 
Green, who held a ticket for some point in Tennessee. I 
do not think that is an interstate train. It is strictly an 
intrastate train, because its journey begins and ends in 
Kentucky. 

Mr. Eosser: Suppose it is a train from Atlanta to 
Brunswick, a train that is sure to have three times as 
much interstate traffic as intrastate traffic? 

Mr. Warfield : We will have to contend for some line 
of demarcation. Now, whether, if half or more of the 
freight or passengers were interstate, that would consti- 
tute the train an interstate train, it would be hard to say. 

Mr. Eosser: Is it not a practical question as to 
whether we do or do not go to the United States courts? 
I hope that the United States courts will open a refuge 
to which I can escape. We have been undertaking to flee 
from the United States court as an evil, whereas it ought 



ii9 

to be a refuge. Now, another thing we ought to keep in 
mind in this discussion: The State courts are going to 
get in line with this Act. The Georgia Legislature, in 
ray opinion, will practically adopt this Act before the 
present session adjourns. A bill for that purpose is now 
pending. A freight train running from Atlanta to Bruns- 
wick will carry three times as much interstate freight as 
it will intrastate. Theoretically, the United States regu- 
lates interstate traffic, while the State is potential in the 
matter of intrastate traffic. Practically, however, because 
in interstate traffic the power of Congress is supreme and 
exclusive, a train carrying interstate and intrastate traffic 
must abide Federal regulation; and the cause of action 
of an employe injured on such a train will, I apprehend, 
come under the jurisdiction of the Federal courts. Judge 
Humphrey warned us that we might encounter difficulties 
if we neglected any possible attack upon the validity of 
this Act. In view of the trend of State legislation, now 
almost always antagonistic to railroads, the established 
validity of this Act will work only one substantial change : 
Federal jurisdiction will be enlarged to take in suits of 
employes when damages are sought for personal injuries. 

Chairman Stone : Are you speaking now with refer- 
ence to the crew? 

Mr. Eosser: I had in mind the employes only. An 
employe engaged at one and the same time in both inter- 
state and intrastate commerce can not, at one and the same 
time, lean both upon the State and Federal jurisdiction 
for the vindication of his rights; he can not look for 
such vindication partly to one jurisdiction and partly to 
the other. One or the other must alone furnish full 
relief. If this Act will enable us to try actions for per- 
sonal injuries to employes, in the Federal courts, then I 
welcome, rather than regret, its speedy operation. I look 



120 

upon the Federal courts, under this Act, as a refuge 
rather than a menace. 

Mr. Warfleld : Suppose this law applies, even though 
the suit is in the State court. 

Mr. Eosser : This Act would be enforced by the State 
courts in cases originally brought there and not removed 
to the United States courts. The great majority of 
the brought cases, if not originally filed in the Federal 
court, would be removed there. And it may not be amiss 
to suggest the certainty of removals as indicating a lack 
of real hostility to the Act. 

I am from a part of the country where State rights 
have been considered important, but I have been amused 
at the solicitude with which State rights are being looked 
after from other parts of the country. We need not 
be afraid that the infraction of States-rights doctrine is 
going to hurt us. I think it is a blessing to the rail- 
roads of this country to get as much as possible under 
the jurisdiction of the United States courts, and thereby 
as far as possible escape from local prejudice and in- 
fluence. 

Mr. Bobbins : Have you ever thought of this : If you 
once vest the whole power over the railroads of this 
country in the hands of one centralized government, a 
national party may be got up that will sweep us into 
New Zealandism. 

Mr. Eosser: It may be possible. I am in the posi- 
tion of the man who said, "Whate'er else betides me, 
one thing I know ; I have known the worst. ' ' 

Mr. Helm : It seems to me this question can be con- 
sidered from two standpoints. If we are considering it 
under the Safety Appliance Act, then all that is neces- 
sary is that the company shall be engaged in interstate 
commerce, and we determine that by determining whether 



121 

the trains pass over the State line. But when you come 
to consider it under the Employers ' Liability Act, may 
you not consider it from the standpoint of the employe? 

Take, for instance, the road that Mr. Warfield men- 
tioned a while ago. Assume that an engineer and fire- 
man started at Louisville and they ran to the end of their 
run in Bowling Green. Now, their train is wholly an 
intrastate train, and may it not be true that you need 
not, in such a case, enter into an inquiry as to whether 
there be freight or passengers going beyond the State 
line in order to determine their rights? It seems to me 
their rights might be determined from their own duties, 
and their duties are determined from the nature and 
length of their run. 

Mr. Warfield : And the termini ? 

Mr. Dickinson: It would be just as much interstate 
commerce if an engineer takes a train to the other side 
of the Tennessee line. 

Mr. Helm : No ; he acts wholly within the State. 

Mr. Dickinson : No ; he is running a train that is car- 
rying interstate commerce. 

Mr. Helm: Suppose a man would get on at Jackson, 
Kentucky, one of those mountain counties, and should 
go as far as Lexington, and that train should have all 
its freight and passengers starting and ending the trip 
within the State, but would have an express package that 
should go to a carrier connecting with the Eastern to 
Cincinnati. Now, does the fact that there are some few 
articles of expressage, or even one, going beyond the 
State line, enlarge the rights of an engineer or conductor, 
as the case may be, whose run is confined wholly within 
the State of Kentucky? 

Mr. Brownell: I suppose if commerce is principally 
the exchange of commodities, transportation ordinarily 



122 

is merely an incident to it. In any case of any exchange 
of commodities between citizens of two States, are they 
any the less engaged in interstate commerce because they 
remain in the State, whereas the commodity passes into 
another State? Is it possible that a corporation can be 
engaged in interstate commerce, except through the em- 
ployment of men ? Of course, in the transportation of an 
article of commerce, the commodity must pass from one 
State to another State, but is the fact that the men em- 
ployed in its transportation do or do not pass with it 
over the State line of importance in determining whether 
they are employed in the interstate commerce in which 
the carrier is engaged! If they are not so employed, 
then it is apparent that commerce takes place without any 
agency. 

Mr. Helm: The difficulty, it seems to me, when you 
come to consider it from the standpoint of an employe 
whose duties are confined to a single State, is that it ought 
not to enlarge his rights. 

Mr. Brownell : Is not the question whether he is em- 
ployed in interstate commerce dependent upon whether 
his work and his duties are in connection with that com- 
merce, and not upon whether he, himself, passes from one 
State to another? If he were a passenger, then I sup- 
pose the question whether he were an interstate passen- 
ger would depend upon whether he passed from one State 
to another. But the question here is with regard to the 
traffic which he assists in handling. 

Mr. Helm: If you come to this position, that any 
single item of freight or traffic going beyond the border 
constitutes that train an interstate train, then where is 
there any room for an intrastate train? 

Mr. Harrison : And does it not cover every train that 
carries interstate freight? 



123 

Mr. Robbins: Recently there were several passen- 
gers from the Hotel Belmont who were going over the 
Jersey Central and the Pennsylvania Railroads and who 
took the trolley. Is that street railway engaged in inter- 
state commerce ! If so, why is not the carriage that takes 
you from the hotel to the station engaged in interstate 
commerce ? 

Mr. Helm : If this question is not to be viewed from 
the standpoint of the party interested, whose duties lie 
wholly within the State, then it will be difficult to find 
a single instance where the employer will not be engaged 
in interstate commerce. I doubt if any such can be found. 

Chairman Stone: We have gone beyond the discus- 
sion of the question. We have gone to Question 11. I 
shall ask the gentlemen to confine themselves to Ques- 
tion 9. 

Mr. Lindley : I noticed in the preliminary discussion 
that it was considered that Questions 9 and 10 might 
be discussed together. I would like to ask this question : 
In the running of trains in Arkansas, as Judge Cochran 
will bear me out, we found that our purely local trains 
carried over fifty per cent, interstate business and our 
through trains carried a larger percentage of such busi- 
ness. Assuming that the enginemen or trainmen were 
injured in the moving of these trains, and assuming, 
further, that the Arkansas statute gives a right of action 
to the widow and she brings an action for the death of her 
husband, an engineer, say, based on the ground that he 
was engaged in purely intrastate business, and the per- 
sonal representative brings an action on the ground that 
the engineer was engaged in interstate business, his train 
being made up of both classes of business, could both ac- 
tions be maintained? 



124 

Chairman Stone : We are not here to ask questions, 
but to have those answered which have been already 
asked. I think we are getting off into questions which, 
while very interesting, may not be very profitable just 
now. I do not think these questions are to be determined 
by the quantity of intrastate freight or the quantity of 
interstate freight that may be aboard any one train, or 
the number of passengers that are interstate passengers 
or the number of passengers that are intrastate passen- 
gers, on any passenger train. The questions that we have 
under discussion do not, I think, give rise to the question 
propounded by Mr. Lindley just yet. Are there any 
further remarks on Questions 9 and 10? If there are not, 
we will proceed to Question 11. Question 11 reads as 
follows : 

11. When can an employe be considered as "em- 
ploved in such commerce" within the terms of the 
Act! 

Mr. Cary: I think as good an illustration as any, of 
the proposition that this Act is a regulation between 
employe and employer, a regulation of commerce, is 
shown by this discussion of this particular subject. I 
do not see how we can reach any conclusion as to Mr. 
Helm's proposition or as to the proposition which is 
opposed to Mr. Helm's until we know what the object of 
the Act is. 

Presumably, it is to regulate something. It is the 
creation of a relationship between employer and employe 
for the purpose of regulating commerce. It seems to me 
that from Mr. Helm's standpoint it is wholly artificial 
to suggest that the mere fact that a train begins to run 
and ends its run in a State, without reference to what is 
carried in the cars in the train, determines whether the 



* 2 5 

employes in handling that train are engaged in intrastate 
or interstate commerce. As I understand the handling 
of freight trains, they lose their identity at practically 
every station. Trains are made up, in a great majority 
of instances, of cars, some of which are destined to go 
over the State line and others of which are destined to 
stop within the State line. The train possesses no homo- 
geneous character as it moves along its route. Now, to 
suggest that the employes, who are the instrumentalities 
of commerce, are engaged in intrastate or in interstate 
commerce, depending on the cars handled by them, seems 
to me to be entirely beside the issue. Commerce, from 
the standpoint of this Act, is perhaps the handling of 
passengers or freight between the States, and I should 
think that the test would be: what effect does this Act 
have upon the instrumentalities engaged in moving them? 
It is addressed, in this case, to human beings as instru- 
mentalities, and if the Act affects, in any manner, the 
passengers or freight which moves back and forth, then 
it seems to me the only thing essential to be proved in 
any case would be that which the government attempts 
to prove in every Safety Appliance case. Take, for in- 
stance, the case of the United States v. Colorado & North- 
western Railroad. The proof in that case, preliminary 
to testing the question whether the Act had been violated, 
was proof of the shipment of a single article, or perhaps 
two articles, of freight, which were moved into that State 
and were turned over to the narrow-guage railroad com- 
pany, the Colorado & Northwestern Railroad. 

Chairman Stone: Was that a case arising under the 
Safety Appliance Act! 

Mr. Cary : That was a case arising under the Safety 
Appliance Act, in which a narrow-guage road, beginning 
and ending in the State of Colorado, was prosecuted, on 



126 

the ground that it did not have certain cars properly 
equipped within the terms of the Federal Act. The facts 
showed that the railroad company issued its own bill 
of lading and handled no cars outside of the State; that 
it was a narrow-guage railroad and issued its own way- 
bills; and that apparently every shipment on the line, 
from the standpoint of the contract of shipment, began 
and ended in the State. The evidence showed that there 
were certain items of commerce (one, I think, was an 
express package coming from outside of the State and 
the other was freight of some kind that came from outside 
of the State) that were delivered on the platform of an 
interstate carrier and carried across the platform and 
put on the cars of this narrow-guage road on a new 
bill of lading. The court, in that case, reviewed the 
Geddes case, which is apparently contrary to the decision 
in that case, and reviewed the other authorities, and 
then came to the conclusion that since the shipment was 
destined to a point within the State at the time it arrived 
from outside of the State, in that case that shipment was 
an interstate commerce shipment, and as a result of the 
proof in that case by simply the movement of one particu- 
lar shipment, they held that the railroad, as to the train 
that handled that shipment, was engaged in interstate 
commerce. 

Now, whether it be the Safety Appliance Act or 
whether it be the Employers' Liability Act, or any other 
Act which is addressed to the regulation of the instru- 
mentalities of commerce for the purpose of eventually 
reaching some protection of commerce, I can not see any 
distinction in principle. 

I think, as we all think, that the difficulty with this 
Act is that the object or result of the regulation is one 
so entirely remote from the provisions of the Act that it 



127 

is almost impossible to conceive what the Act was in- 
tended to correct. That is another problem, however. 
But assuming- that it is an attempt to regulate com- 
merce and that we can find some connection between it 
and commerce, then what is commerce from the stand- 
point of this Act? It is, in part, at least, the movement 
of freight and the transportation of people. That is the 
chief thing. It is not the movement of cars, or the move- 
ment of employes, or the duties of the master to the em- 
ploye. That is all beside the issue. The ultimate object 
is to see that the passengers and the freight reach their 
dstination in the way the government intends them to 
move. Therefore, the only test is : Are they handled, 
or not? 

From the standpoint of the principles laid down in 
these cases, I think that a plaintiff bringing an action 
and alleging that a carrier was engaged in interstate 
commerce would bring the carrier within the Act if it 
averred the same kind of evidence that the United States 
offers in proof of the violation of the Safety Appliance 
Acts, namely, proof not only that the carrier had tracks 
running across the State line, or perhaps cars running 
across the State line (since the mere proof of the former 
would not be proof of commerce at all, and' the court 
would probably take judicial notice of the fact that no 
company is engaged in handling empty cars back and 
forth, and will take it for granted that empty cars go back' 
and forth over the State line because those cars had car- 
ried freight across the other way), but also the further 
proof of the shipment of freight and passengers. I there- 
fore say that proof that a railroad is engaged in inter- 
state commerce, or that the employe is engaged in inter- 
state commerce, can be made simply by proving, as the 
government does in its prosecutions under the Safety Ap- 



128 

pliance Acts, that a particular railroad is handling busi- 
ness, is moving traffic, in cars from one State to another. 

There is, however, another phase of this proposition. 
When must that proof be made? Must it be made in 
respect of the time that the particular accident happened ? 
That, I think, is a matter of importance. In regard to 
the Safety Appliance Act, the proposition applies to the 
instrumentalities used in interstate commerce. It is 
recognized that a freight car can not be divided up. 
To-day it is used in intrastate commerce; to-morrow it 
is used in interstate commerce. 

As an illustration, in some recent prosecutions before 
Judge Landis, in the District Court of Chicago, the Gov- 
ernment offered in proof, not that a particular car that 
was moving back and forth in the yards of one of the 
railroads of Chicago was at that time carrying interstate 
shipments, but that that particular car had made a jour- 
ney at a previous time from St. Paul to Chicago — I think 
some three weeks before. That movement was not iden- 
tified with the particular movement which was involved 
at the time that the alleged failure to comply with the 
Safety Appliance Act was charged. The theory on which 
the Government presented its case was that this was an 
instrumentality of commerce which had been used indis- 
criminately in intrastate and interstate commerce, to-day 
in carrying interstate freight and to-morrow in carrying 
intrastate freight; that to render effective the Safety 
Appliance Act, it must reach all such cars as are used in- 
discriminately ; and that therefore the Government was 
not bound to prove that at the particular time the alleged 
defect existed, the car, as to that journey, was engaged 
in interstate commerce. 

Now, is there not a difference between that situation 
and the situation where human beings, who are instru- 



129 

mentalities of commerce so far as this Act is concerned, 
have rights of action against each other. 

Chairman Stone: Does not the Act itself show that 
the injury must be inflicted while the employe is em- 
ployed by such carrier in such commerce? 

Mr. Cary: That, I think, is the interpretation which 
ought to be put upon it. In other words, you will notice 
that the word "engaging" is used in this Act with re- 
spect to the carrier, and the natural concomitant of that 
is that the employe must be actually employed in inter- 
state commerce at the time of his injury. 

Chairman Stone: The Act goes further and says 
that at the time of the injury he must be employed in 
interstate commerce. 

Mr. Dickinson : That is the distinction between this 
Act and the other Act. 

Mr. Cary: In this Act, the carrier, through its em- 
ployes, is "engaging" at the time, and the employe is 
"employed" at the time. In* other words, I think a dis- 
tinction can be made between this Act and the Safety Ap- 
pliance Act, from the standpoint of being generally en- 
gaged, and that therefore the proof must in this instance 
be that the employe is engaged and the carrier is engag- 
ing, through its employes, who have caused the injury, at 
the time of the injury, in interstate commerce. 

Chairman Stone : You think the employe is engaged 
in interstate commerce if there is an interstate passen- 
ger aboard the train of which he forms one of the crew, 
or there is any freight which is being carried thereon 
from a point in one State to a point in another State. 

Mr. Cary : My argument would perhaps lead to that 
extreme deduction. But I will say this : that I think that 
the courts are not going to make any nice distinctions. 
I think they are going to resolve everything in favor of 



130 

the jurisdiction of the Federal courts as to a particular 
case. I can not answer your proposition and I do not 
think anybody here can answer it. I do not think that 
any one can say that there is a distinction between a 
case where every car in a train is carrying interstate 
shipments and a case where half the cars in a train are 
carrying interstate shipments or a case where there is 
one car which is carrying only one single express package 
or one passenger. 

I doubt if that will be the guide. I think they will 
look at it from the broad standpoint of equity and con- 
sider each case on its merits, without any categorical 
rule laid down in advance. I think it will have to be 
a development, but I think the fundamental test will be 
the movement of freight or passengers, or perhaps the 
handling of cars destined to move interstate freight or 
passengers. 

Mr. Brownell : I think the question of the Chairman 
has been practically answered by the Supreme Court, 
and that it can be answered by reference to the provi- 
sions of the Federal Constitution itself. A railroad com- 
pany has a lawful right to engage in the several kinds of 
business. It can engage in interstate commerce; it can 
engage in intrastate commerce; and it can engage in 
various other phases of its business that are not ultra 
vires; and frequently it is engaged in interstate and in- 
trastate commerce, and the same means are employed in 
connection with both kinds of commerce. I suppose it is 
elementary that, generally speaking, the exclusive power 
of regulating interstate commerce is in Congress and the 
exclusive power of regulating intrastate commerce is in 
the States. At the same time, it has been said (and the 
line there is a varying one, difficult to draw) that Acts of 
State Legislatures, passed in the exercise of their police 






i.3 * 

powers, but incidentally regulating interstate commerce, 
may be valid if they only incidentally touch upon or regu- 
late it. It seems to me that an employe who is employed 
in connection with the movement of any interstate com- 
merce is employed in interstate commerce, although he 
may be at the same time employed in connection with the 
movement of one hundred times as much intrastate com- 
merce. 

The Constitution not only confers upon Congress the 
exclusive power to regulate interstate commerce, but also 
expressly provides that the Constitution, and the laws 
that are made in pursuance of it, shall be the supreme 
law of the land, and I think that if there be a conflict 
between the two jurisdictions, or the two regulations, the 
State regulation must yield. 

A serious question may arise where employes are at 
the same time engaged in connection with interstate com- 
merce and with intrastate commerce, as to the extent to 
which the State regulations of the intrastate commerce, 
and of the employes who are engaged in connection with 
both the interstate and the intrastate commerce, may 
continue in force, so long as they do not conflict with the 
Congressional regulations. I do not find that the Su- 
preme Court has in any manner modified the rule which 
was laid down in the Daniel Ball case, back as far as 
1871. You will recall that in that case, although it was in 
connection with a movement by water, the court was care- 
ful to place the ruling upon the ground of it being a 
regulation of interstate commerce. The Daniel Ball was 
plying only on the Grand Eiver and between points in the 
State of Michigan, and the bulk of its business consisted 
of the carrying of packages that were intrastate ship- 
ments alone. It had no part in any continuous line in 
connection with any other vessel or railroad, but it did, to 



l 3 2 

some extent and on occasion, transport packages which 
came from without the State, destined to points both 
in the State and outside. 

The court said, 10 Wallace, 557: 

There is, undoubtedly, an internal commerce 
which is subject to the control of the States. The 
power delegated to Congress is limited to commerce 
" among the several states,'' with foreign nations, 
and with the Indian tribes. This limitation neces- 
sarily excludes from Federal control all commerce 
not thus designated, and, of course, that commerce 
which is carried on entirely within the limits of a 
state, and does not extend to or affect other states. 
Gibbons v. Ogden, 9 Wheat. 194. In this case it is 
admitted that the steamer was engaged in shipping 
and transporting down Grand Eiver, goods destined 
and marked for others states than Michigan, and in 
receiving and transporting up the river goods 
brought within the state from without its limits ; but 
inasmuch as her agency in the transportation was 
entirely within the limits of the state, and she did 
not run in connection with, or in continuation of, any 
line of vessels or railway leading to other states, it 
is contended that she was engaged entirely in domes- 
tic commerce. But this conclusion does not follow. So 
far as she was employed in transporting goods des- 
tined for other States, or goods brought from without 
the limits of Michigan and destined to places within 
that state, she was engaged in commerce between the 
states, and however limited that commerce may have 
been, she was, so far as it went, subject to the legis- 
lation of Congress. She was employed as an instru- 
ment of that commerce, for whenever a commodity 
has begun to move as an article of trade from one 
State to another, commerce in that commodity be- 
tween the states has commenced. The fact that sev- 
eral different and independent agencies are employed 
in transporting the commodity, some acting entirely 
in one state, and some acting through two or more 
states, does in no respect affect the character of the 
transaction. To the extent in which each agency acts 
in that transportation, it is subject to the regulation 
of Congress. 



133 

That case was followed and applied in the very recent 
decision of the Commerce Commission in Leonard v. Kan- 
sas City Eailway Company. 

Mr. Warfield: Three of the Commissioners dissent- 
ed in that case. 

Mr. Brownell: It does not seem possible that the 
question whether the supreme regulation shall be that 
of Congress or the State can depend upon whether fifty 
per cent, or five per cent., or any other per cent., of the 
commerce is of one character or the other. It seems to 
be part of the fundamental law that if a regulation of 
this kind is a regulation of commerce, then any employe 
who is engaged to some extent in connection with that 
commerce is subject to the congressional regulation as 
the supreme law of the land ; and it is a question entitled 
to our consideration whether, in view of the fact that un- 
doubtedly the employe is engaged at the same time in 
connection with both interstate and intrastate commerce, 
the regulation by the State of its commerce and the ex- 
ercise of its police powers can continue to operate to 
the extent to, and in the particulars in, which they are 
not covered by congressional action. 

Chairman Stone : I want to ask you a question. You 
are of the opinion that in any case an employe may bring 
under this Act, he must show that the train on which he 
was injured carried, for example, an interstate passenger 
or some interstate freight. 

Mr. Brownell: I think it would be essential to show 
that at the time the accident occurred and the injury was 
received he was engaged in connection with the transpor- 
tation of an interstate passenger or in the transportation 
of goods that had been received for shipment and had 
started on an interstate journey. I do not think that 
the mere fact that local passengers were on the train, 



*34 

who might intend or were intending to go to a further 
point or points, or might ultimately go to an interstate 
point, would have any bearing upon it, unless they had 
started then upon an interstate journey covered by their 
contract for transportation. 

Chairman Stone: Suppose the employe was injured 
on a train running from a point in one State to a point 
in another State, on which train there was no interstate 
passenger or interstate freight, could he then come under 
the provisions of this Act simply because the train itself 
was running from a point in one State to a point in 
another State! 

Mr. Brownell: My own judgment would be that he 
would. I know that I disagree in that regard with counsel 
for whose opinion I have the highest respect, but I think 
that commerce is more than an exchange of commodities, 
a principal thing, and it is more than the transportation 
of those commodities. I think that the movement of a 
car or of a train itself, and of the employes upon that 
train, from a point in one State to a point in another, 
is intercourse, and its regulation is within the power of 
Congress to regulate commerce. I can not avoid that con- 
clusion. 

Chairman Stone: Suppose an engine, with no car 
attached, is run from one State to another, would he then 
come under the same provisions? 

Mr. Brownell : Yes ; such a movement is in connec- 
tion with the business of a carrier engaged in interstate 
commerce. It is necessary for that business that it should 
pass freely from one State to another; and if its free 
flow could be stopped by the State, that would be check- 
ing interstate commerce. 

Chairman Stone: Wouldn't your construction of 
what this Act means bring all the employes of all the 
railroads in the United States within its provisions? 






J 35 

Mr. Brownell : I think it would bring within its pro- 
visions substantially all employes upon railroads who are 
connected with the transportation. 

It seems to me that there may arise questions very 
delicate and difficult to answer, with respect to employes 
in yards, and even those in repair shops and in repair 
yards, and various other classes, as to whether they are 
employed in connection with interstate commerce, but so 
far as the trainmen and the telegraph operators, and 
others who have to do with the movement, are concerned, 
I think they are covered by the Act. 

Mr. Helm: Is it not true that the Safety Appliance 
Act applied in the Johnson case to the dining-car whicn 
had not started on the journey, but simply was moved 
in the yard to be put in the train? And yet the same 
rule applies to both. Does not that settle your question 
as to that movement? That car had not started on its 
journey, but was still in the yard. 

Mr. Brownell: There are some differences between 
the Employers' Liability Act, the Safety Appliance Act 
and the Interstate Commerce Act that should not be lost 
sight of. In the Safety Appliance Act, Congress has gone 
nearly as far as it can in its control of cars employed 
in moving interstate traffic. Although the original Act is 
not as broad in its terms as the amendatory Act, yet the 
Supreme Court seems to have treated the latter Act as if 
merely explanatory, and has given to the restricted lan- 
guage of the original Act the broadest interpretation. On 
the other hand, in the first section of the Interstate Com- 
merce Act there is the express provision that the provi- 
sions of that Act do not apply to the movement of traffic 
entirely within the limits of one State, and I think that 
a careful comparison will have to be made of the terms 
of these various Acts in considering the bearing of de- 
cisions concerning any one of them on the others. 



136 

Mr. Cochran: Suppose there is a train composed 
wholly of bad-order cars, being moved from one State 
to another for the purpose of repair, carrying no pas- 
sengers and no traffic, would you consider the movement 
of such train as involving interstate commerce? 

Mr. Brownell: I would consider that movement as 
being subject to the power to regulate interstate com- 
merce, because I think that is intercourse and that it 
would be intolerable, under our scheme of government, 
if a State could regulate or prevent such a movement of 
the train and the transaction by the interstate carrier of 
its business in that regard. If it is beyond the power of 
Congress to regulate and control the movement of that 
workmen's train between the two points in the two States, 
it would follow that, as the power must be somewhere, 
the two States would have the power to regulate, restrict 
and curtail that movement. 

Mr. Cochran: The question I asked was suggested 
on account of a recent suggestion or criticism of the 
Interstate Commerce Commission as to the movement 
of cars on our system, from one point, say, in Missouri, 
to points in Arkansas, for purposes of repair. A train 
was made up of the bad-order cars, and, there being no 
adequate facilities at the time in Missouri to make the 
necessary repairs, was sent to our shops in Arkansas. 
This was claimed to be a movement of interstate com- 
merce and came within the general provisions of the 
Safety Appliance Act ; in other words, that it was a viola- 
tion of the Safety Appliance Act to move bad-order 
cars from one State to another, although there were no 
passengers on board and although there was no freight 
on board. I have not been able to accept this view of the 
matter. I do not believe that that is a movement of in- 
terstate commerce in any sense. I think we would be 



137 

going entirely too far to admit that the movement of 
such a train would be a violation of the Safety Appli- 
ance Law. It seems to me that in the case that I have 
suggested, the movement of the cars has no relation what- 
ever to interstate commerce, and that under these cir- 
cumstances if an employe was injured he would have no 
right to recover under this Liability Law. 

This is a question we might as well have in mind, 
because it is one that may confront us at any time. 

Chairman Stone : I will state for the information of 
those present that I have a printed copy of the opinion 
of District Judge Tayler for the Northern District of 
Ohio, in the case of the United States v. Wheeling & Lake 
Erie E. E. Co., which was referred to by Mr. Eeath yes- 
terday. There the court makes a distinction between the 
attitude of a car under the Safety Appliance Act and 
an employe. In dealing with this matter he states that 
the jurisdictional facts alleged, in order to bring the cars 
referred to within the embrace of the Federal Act (it 
being a case where there was a suit brought on twenty- 
three causes of action under the Safety Appliance Act), 
are: 

1. That the car was itself at the time used in 
interstate commerce, being loaded with some kind 
of freight originating outside of the State of Ohio, 
and being carried within it or being destined to some 
point outside of the State ; or ■ 

2. That it was a car which, being one regularly 
used in the movement of interstate commerce, was, 
at the time of the violation, being hauled in a train 
containing interstate commerce, one car in the train 
with it, as, for example, Illinois Central 35572, con- 
taining baled hay consigned to a point within the 
State of West Virginia. 

The petition was demurred to on several grounds, one 
being the same as one that we have had under discussion 
here, which, it may be stated, was offered on the part 



i3» 

of counsel for the defense to bring the case under the 
doctrine laid down in the decision in the Employers ' Lia- 
bility cases recently decided by the Supreme Court. On 
that point the court says: 

It is true that the Supreme Court in that case 
held the employers ' liability act unconstitutional, be- 
cause it made the railroad company liable to any 
of its employees, without restricting the liability to 
those who were engaged in interstate commerce ; but 
a parity of reasoning would not require that we 
should say the same thing of the Safety Appliance Act 
because it refers to all cars used on any railroad en- 
gaged in interstate commerce. It seems to me that, 
in the respect complained of, there is no analogy 
between the decision of the Supreme Court in the 
Employers' Liability cases and the theory of the 
defendant's counsel as to the constitutionality of the 
Safety Appliance Act. An employee of a railroad 
company engaged in interstate commerce does not, 
merely because he is such employee, sustain the same 
relation to interstate commerce as a car used on a 
railroad engaged in interstate commerce sustains to 
interstate commerce on that road. Certainly, the 
Federal Government owes no duty to, and has no 
authority over, an employee of a railroad which is 
engaged in interstate commerce, if the employee him- 
self is not engaged in the work of interstate com- 
merce. That employee is subject, in respect to his 
relations with the railroad company, to the laws of 
the State in which the service is performed. There 
is n© reason why the power of the State should not 
be sufficient for his protection, or why the Federal 
Government should interfere with respect to that or 
any other matter relating to that employee in respect 
to his work with the railroad company, so long as 
it does not relate to the interstate commerce of the 
company. 

But this it not true of a car used by a railroad 
engaged in interstate commerce. All of the cars 
used by a railroad engaged in interstate commerce, 
in the natural course of their use, are instrumental- 



139 

ities of interstate commerce ; whether they carry in- 
terstate traffic themselves or are hauled in a train 
which contains interstate traffic the effect is the same. 
They stand in a certain and important relation to 
that interstate commerce over which Congress has 
control; and it is quite apparent that Congress, in 
undertaking to determine the manner in which inter- 
state commerce shall be carried on, and especially 
in making effective the useful and beneficent purpose 
of providing for the safety of employees, would nec- 
essarily have a regard for the cars which the inter- 
state commerce railroad had in use. And thus, dis- 
covering a very marked and practical distinction be- 
tween a car used by an interstate commerce railroad 
and a person in the employ of an interstate commerce 
railroad, we see how one, in the nature of things, 
becomes properly the subject of Federal legislation, 
while the other, depending on the character of his 
work, may or may not become properly the subject 
of Federal legislation. This proposition is amplified 
in the reply herein made to the third objection to the 
applicability of the Act. 

That objection was this: 

3. That in the case of empty cars, or cars not 
loaded with interstate commerce, it does not appear 
that they were, at the time of the existence of the 
defects, being used in interstate commerce. 

On that third objection the court says: 

What shall we do in the case of a car which is 
regularly used in the movement of interstate traffic 
but at the time when the defect is known to exist is 
itself not being used for carrying interstate com- 
merce, but is being hauled in a train containing a 
car loaded with interstate commerce! What is the 
purpose of the law? Here is a train which is engaged 
— at least part of it — in interstate commerce, and 
so long as that is true every car in the train is im- 
pressed, so far as the requirements of this Act are 
concerned, with an interstate character. It is a part 



140 

of the current. The interstate car cannot move ex- 
cept with relation to the empty car. The empty car 
may at any moment be coupled to the interstate car. 
A brakeman engaged in performing some duty in 
respect to the interstate car may be compelled to 
pass over or use a grab-iron on the empty car or 
couple the empty car to the interstate car. Endless 
confusion would arise if any distinction was made 
under such conditions between a car loaded with 
interstate traffic and an empty car regularly used in 
the movement of interstate traffic but at the time 
unloaded and coupled to another car actually in use 
in the movement of interstate traffic. Of course, the 
same thing must be said of the loaded car, whatever 
the character of the freight it carried, if it is a car 
regularly used in the movement of interstate traffic. 

And so the demurrer, on the grounds stated, was over- 
ruled. That decision was rendered June 16, 1908. 

Mr. Brownell: I think there is no inconsistency be- 
tween the views expressed by me in regard to the bear- 
ing of the Liability Act and Judge Cochran's views as 
to the Safety Appliance Act. The Safety Appliance Act, 
as I understand, provides that it shall be unlawful for a 
carrier to use any car in moving interstate traffic not 
equipped as required by the Act — in moving interstate 
traffic. It implies that there shall be traffic moved. But 
the Employers' Liability Act regulates liability to any 
employe of an interstate carrier employed in interstate 
commerce. One Act is more limited in its application 
than the other, and that is the distinction between the 
two that harmonizes the different views. 

Mr. Wickham: I have listened with great interest 
and great benefit to the discussion that has preceded this 
point, and especially to the remarks of Mr. Keeble. I 
take it, Mr. Chairman, that our function is, of course, 
not to say what the law is, but to argue the cases as they 
may arise from time to time and to play our part towards 



I 4 I 

the solution of one of the great questions that sometimes 
come up in the world's history. 

I was very much surprised when I found that the 
consensus of opinion seemed practically to yield abso- 
lutely to the power of Congress in its widest extent, as 
shown in this Employers' Liability Act. I agree with 
Mr. Keeble that we should make such points as we can, 
because we have no idea how this question is going to 
be ultimately decided. We know that there is, in the 
minds of the Justices of the Supreme Court of the United 
States, constituted as it now is, uncertainty with respect 
to the questions involved in these Acts. We do not know 
how soon the decision may be modified, nor do we know 
how soon a change may come in public sentiment or 
what effect that change in public sentiment may probably 
have upon the decision of the court, because, in my judg- 
ment, we are up against one of the great industrial crises 
that sometimes strike the world. 

I take it we are here for some practical purpose, and 
I may be pardoned for saying that not knowing of this 
meeting I have answered certain inquiries addressed to 
me by our General Claim Agent and his assistants. I, 
of course, have not made up my mind as to any hard and 
fast line of action to take, yet, as preparatory to that, 
I have directed him in every instance where there has 
occurred a personal injury in connection with the move- 
ment of any car or the transportation of any passengers, 
for instance, to furnish, in advance, the manifests of the 
contents of that car or of the destination and place of 
origin of the freight, or where the passenger bought his 
ticket and where he is going. 

Chairman Stone: If this decision of Judge Tayler's 
holds good, you will have to enlarge that inquiry and take 
in the contents of each car in the whole train. 



142 

Mr. Wickham: I was speaking more particularly 
about the yard freight or bringing a passenger on the 
train, which brings it within the purview of the Act of 
Congress which was passed. In Virginia we are up 
against a very serious proposition in the shape of State 
authority. We have a State Commission there which im- 
poses heavy penalties in the shape of demurrage in the 
non-acceptation of cars, so many miles per day, and we 
have already taken the position that so far as that is 
concerned, that is interstate traffic. You take a car that 
has come into the yard at Eichmond and is destined to 
a warehouse upon either the public road or a siding. 
We are succeeding in the contention that that is interstate 
commerce and beyond the power of the State Commission 
to interfere with in any shape or form. We are testing 
the question and we are succeeding in our litigation, and 
it is, with the utmost respect, a matter of great moment 
to us to succeed, because we have them, at our homes, 
very much closer to us and very much more vigorous at 
times than the Interstate Commerce Commission, includ- 
ing daily association, which is exceedingly unpleasant 
at times. 

Chairman Stone: Are they appointed or elected? 

Mr. Wickham : They are appointed and confirmed by 
the General Assembly. 

In an investigation which is now under way, we have 
made very close inquiry into the comparative movement 
of traffic, and I believe that there is a very close propor- 
tion between the movement of traffic and personal injury 
to employes. In the course of that investigation, I became 
very much surprised and very much interested to find 
out that, taking the Chesapeake & Ohio Railway as an 
illustration, eighty-five per cent, of our business was 
interstate and but fifteen per cent, of it was intrastate. 



143 

Chairman Stone: That is, of the whole traffic, pas- 
senger and freight? 

Mr. Wickham : That was freight. As to passengers, 
the proportion was different. There was more intrastate 
movement of passengers than there was intrastate move- 
ment of freight. 

Following that investigation a little further, I again 
became surprised and interested when I found that, 
roughly speaking, the number of persons affected by 
that was practically in the inverse ratio; that is to say, 
that the number of people concerned in the fifteen per 
cent, of intrastate freight business was as eighty-five 
is to fifteen, and the number of people concerned in in- 
terstate business was only as fifteen is to eighty-five. 

I take it that that is a fair illustration of the business 
of the railroads throughout this country, and I take it 
that you will find that there are perhaps eighty-five voters 
interested in the movement of intrastate business, includ- 
ing the passengers and all, to only fifteen people in your 
State who are interested in interstate business. 

My deduction from that is that when this great ques- 
tion comes to be decided there will be very powerful 
influences sustaining the State rights theory; and while 
I fully agree that, as our Constitution is written and as 
it has been heretofore administered, Congress has the 
power (and perhaps it may be well for us that it has 
the power) to give us a very great protection, yet I take 
it that our Senators and Eepresentatives in Congress, 
who will have a very great influence upon the minds of 
the justices, will be affected equally by this theory in 
Massachusetts as in Virginia, equally in California as in 
Georgia or South Carolina. You will not find that these 
gentlemen are going to antagonize the interests of eighty- 
five out of every hundred of their constituents, for, if I 



144 

am at all correct in the investigation which I have made, 
that is about the ratio of the people interested in intra- 
state movement to the people interested in interstate 
movement in all of these United States, taking the Chesa- 
peake & Ohio Railway as a fair example and Virginia 
as an illustration. 

So that while, in my judgment, the courts of the 
United States probably will at first carry out the views 
that have been expressed by our friends here as to the 
constitutional power of Congress to act in this regard 
and give the railroads some protection,- yet this will be 
leavened by the influence which will be exerted by the 
very great number of people affected by considerations of 
intrastate commerce, and that such a policy will ultimately 
be adopted as will give a choice and an election between 
remedies under the Federal law and remedies under the 
State law. Eight there is the point where our greatest 
danger lies. 

Going a little into the speculative political field, no 
matter which party succeeds, that party is going to at- 
tract to itself such proportion of the labor vote as it can. 
The parties will practically bid against each other, and 
that influence will unquestionably reach the highest tribu- 
nal, and what they are likely to do is to give them a liberal 
Federal Employers' Liability Act, but at the same time 
leave it to the States to give them a still more liberal one, 
and give the election. That is what is likely to occur. 

Now, what is our duty and what line shall We adopt 
with respect to the defense of cases arising under the 
present Federal Employers ' Liability Act? 

It seems to me that we should contend, as far as we 
consistently can (bearing in mind the positions we have 
already taken in regard to the demurrage questions), that 
the Interstate Commerce Commission, the Interstate Com- 



H5 

merce Act and the power of Congress are supreme and 
paramount and exclusive up to the time of the delivery 
of the freight traffic to the consignee. We ought to con- 
tend for the supreme power of Congress, as far as we 
can, and to make every point with all the authority that 
we can, so that these very great questions may be 
threshed out and presented to the court of ultimate resort 
in such a manner as to force them, so far as possible, 
to come to some logical line of decision and leave it to 
the American people to say whether they will support 
the court in that decision, or say, as I feel they will say 
when the time comes, "We will support the court in this, 
provided it does not interfere with these eighty-five people 
who have no interest in interstate business. " 

Mr. Robbins: In getting at your statistics, how did 
you distinguish between the employes engaged in inter- 
state business and those engaged in intrastate business? 

Mr. Wickham: We did not undertake to do that. 
I took the bills of lading, the movement, for two months, 
and thus got the percentage for the twelve months ' busi- 
ness. 

Mr. Robbins : On the basis of the receipts from the 
freight? 

Mr. Wickham : On the basis of the receipts from the 
freight and the movement, too. I had it estimated as 
closely as possible. 

Mr. Robbins : How did you get at the fact that 
eighty-five per cent, of the employes were engaged in in- 
trastate business? 

Mr. Wickham: I say that eighty-five per cent, of 
the business of the Chesapeake & Ohio is interstate and 
fifteen per cent, is intrastate. 

Mr. Robbins : How did you get that per cent, of 
intrastate business? 



14^ 

Mr. Wickham : I had the shipments counted for two 
months. I had a statement made up of everything in the 
way of shipments moved in the State of Virginia for 
two months. But, I say, the proportion of accidents is 
very largely affected by the movement of traffic. I had 
to assume that. In other words, while of course the per- 
centage is not exactly accurate, yet if you move two mil- 
lions of tons you are likely to have a great many more 
accidents than if you move one million, because it takes 
so many more people to handle it; there are so many 
more tons to move. There is no accurate percentage pos- 
sible, but I do know, from my own experience, that the 
ratio of personal injuries bears a very fixed relation to 
the extent of movement. 

Mr. Brewster: Am I to understand you to say that 
the injured were eighty-five per cent. 1 

Mr. Wickham: No. 

Mr. Brewster: The proportion was just reversed; 
those persons injured in interstate business were fifteen 
per cent., and those injured in intrastate business was 
eighty-five per cent. 

Mr. Wickham: No, sir; I am very unfortunate if I 
created that impression. I said that the number of peo- 
ple engaged in handling intrastate business was as eighty- 
five is to fifteen, and the number of people engaged in 
handling interstate business was only as fifteen is to 
eighty-five. It was not with reference to personal in- 
juries, but just simply with reference to shipments. 

Chairman Stone : We will now proceed to the discus- 
sion of Question 12, which reads: 

12. Noting the difference between Section 3 of 
the present Act and Section 2 of the old Act, is tliero 
any constitutional objection to the adoption by Con- 
gress of the statutory rule in assessing damages in 
suits brought under this Act? 



147 

In order to bring before the Conference Section 3 of 
the present Act, I will read it: 

Sec. 3. That in all actions hereafter brought 
against any such common carrier by railroad under 
or by virtue of any of the provisions of this Act to 
recover damages for personal injuries to an em- 
ployee, or where such injuries have resulted in his 
death, the fact that the employee may have been 
guilty of contributory negligence shall not bar a 
recovery, but the damages shall be diminished by 
the jury in proportion to the amount of negligence 
attributable to such employee. 

I will not read the proviso, as that is covered by the 
subsequent question. 

Mr. Gary: I wish merely to say, in explanation of 
that question, that the situation is as follows: It will 
be remembered that under the old Act the committee, 
in considering Section 2 of the old Act, attempted 
to demonstrate that the old Act still created a rule of 
liability between an employer and an employe; that is, 
that the Act did not attempt to take away the fact that un- 
der some cases there might be a defense on the part of the 
employer. The old Act provided that contributory negli- 
gence should not be a defense where the negligence of 
the plaintiff was slight and the negligence of the de- 
fendant was gross in comparison. 

That, we thought, necessarily assumed that where 
the negligence of the plaintiff was not slight and the 
negligence of the defendant was not gross in comparison, 
whatever that might mean, there would still be a defense 
on the ground of contributory negligence. The Act as 
drawn eliminates that rule of liability. It apparently 
creates an inevitable liability on the part of the defend- 
ant, irrespective of the question of contributory negli- 
gence. That is, if the plaintiff proved now that the de- 



148 

fendant was negligent under the law (perhaps the com- 
mon law, or as modified by the subsequent provisions Qf 
this Act), then the plaintiff could recover something, ir- 
respective of what his conduct might have been. The 
rule of comparative negligence is apparently abolished by 
this Act. As we originally treated these questions, I 
thought it was the admiralty rule that applied. We 
had in the question, as originally drawn, the word "ad- 
miralty ' ' in place of the word i i statutory. ' ' Several gen- 
tlemen thought that was not correct, because, they said, 
this was not the adoption of the admiralty rule, whatever 
that might be. But, in any event, the section as now 
drawn probably does do away with the question of lia- 
bility and leaves the plaintiff in the position where 
he can recover upon proof that the defendant has been 
guilty of a legal fault; that is, has been guilty of negli- 
gence of some kind or of a failure in duty to the plaintiff. 
Once you have proved that the defendant company is 
guilty of negligence to the plaintiff, then there are no 
questions of instructions to be given to the jury on the 
question of liability, as we interpret the Act; that is, 
the plaintiff then goes to the jury only on the amount of 
his recovery, and the question of his contributory negli- 
gence is used only for the purpose of determining how 
much he ought to bear and how much the defendant ought 
to bear, of the injury. My impression of the admiralty 
rule is interpreted, I think, in the Max Morris case by 
the Supreme Court (a quotation from which appears in 
the previous pamphlet) that there is to be distributed 
on an equitable basis between the party injured and the 
employer, the total amount which should have been 
awarded. In other words, if the party injured, without 
his own fault, would be entitled to an equitable reward, 
we will say of $5,000 for an injury, and it appeared in 



149 

the course of the case that he contributed to a part of 
his injury, then the court distributed between the em- 
ployer and the employe a certain proportion of the total 
amount that ought to be recovered. It said that the em- 
ploye, by reason of having contributed a part to the 
injury, should bear a certain proportion of the $5,000, 
and that should be deducted from that amount, and that 
the employer should bear the remainder. I understand 
that is the general principle of the distribution of dam- 
ages under the admiralty rule, and it seems to me that 
is what is attempted here as to this statute. 

Now, the question is: Is there any constitutional ob- 
jection to a statute of that kind? I, personally, can not 
see that there is. It seems to me that it is within the 
power of the Legislature, as a matter of public policy, 
assuming that the classification is a natural classification, 
to state that certain classes of employers shall compen- 
sate their employes for injuries suffered by them, ir- 
respective of the old rules of common law of negligence, 
and that it is possible for the contributory negligence 
of the employe to be used, not as a basis of defense, but 
merely as a basis for the purpose of cutting down the 
damages. I am not sure (I presume the question has 
never been tested in this country) as to whether compen- 
sation Acts are constitutional. I think Mr. Bobbins said 
something about there being a decision in Massachusetts. 

Mr. Bobbins : The English Act. 

Mr. Cary: In Massachusetts. I have never investi- 
gated the question and I do not know whether the con- 
stitutionality of the compensation Acts has been raised, 
but if they are constitutional, it seems to me these might 
fall in the same category, although there is a fundamen- 
tal difference between this and the compensation Act. 
Compensation is based, not upon the question of negli- 



150 

gence, but it is a sort of insurance. The primary requi- 
site in this Act, from the standpoint of requiring the 
employer to compensate the employe, is that negligence 
must first be proved. Now, under that theory, is it pos- 
sible to give a recovery irrespective of whether the plain- 
tiff has been guilty of negligence! I feel that it is. 

Chairman Stone: While it is not perhaps strictly 
within the question under consideration, I want your 
views on some questions that I am going to propound 
myself. Where the carrier's negligence consists wholly 
in the negligence of the employe injured or killed, may 
there still be a recovery of damages ? 

Mr. Cary: That involves a question which I have 
heard raised with regard to this same proposition. The 
Act, as now drawn, presupposes that the employe will 
always be entitled to recover, irrespective of the compara- 
tive phases of negligence of the employe and the em- 
ployer. Assume that there is a phase that apportions in 
fractions the negligence of either, and that the employe 
was, if not wholly responsible, two-thirds responsible, 
and the employer only one-third. Why should there be 
any recovery at all in that case? The Act speaks of de- 
duction, and it therefore seems to suggest that there 
will always be a right of recovery, and that no matter 
what the comparison may be the employe will be entitled 
to something. I think we ought to take the position that 
where the act of the employe is as much the proximate, 
or the full proximate, cause as the act of the employer, or 
is the whole cause, in each of those cases the recovery on 
the part of the employe ought to be nominal merely, one 
cent damages. 

Chairman Stone: I will ask you another question. 
What would be the power of the court in such case over 
the verdict of the jury? May the court in such case direct 



i5i 

a verdict or instruct the jury to find a verdict for nominal 
damages only! 

Mr. Cary : It would seem that some principle of law 
ought to be applicable to the case. Assuming that some 
principle of law does exist, then, of course, a basis of 
instruction to the jury is created, and I think that prin- 
ciple of law ought to be this: That where the plaintiff's 
negligence was as much the proximate cause of the injury 
as the defendant's negligence, then, under this Act, the 
jury ought to find only nominal damages. Of course, a 
verdict could be directed where the plaintiff's negligence, 
as a matter of law as distinguished from fact, was the 
sole proximate cause. 

Chairman Stone : Do you think it is within the power 
of Congress, by legislation, to conclude a judicial ques- 
tion? Would that not be taking the carrier's property 
without due process of law? It would declare a right of 
recovery without a judicial hearing. 

Mr. Cary : I feel that that is begging the question as 
to whether contributory negligence is as much an inherent 
part of our law as various other laws of the land. I am 
not so sure that contributory negligence is anything more 
than an artificial basis which has grown up in liability 
cases. It had its growth. Why should, from the stand- 
point of ethics, contributory negligence be a defense to 
a right of action? The law, it seems to me, was looked 
upon as a rather clumsy means of giving compensation 
to parties injured, and the jury was rather a clumsy 
method of getting at the result. As long as actions were 
brought in common law and it was left to twelve men to 
reach a conclusion, the law worked out the proposition 
on an approximation of equities, and hence grew up the 
rule that contributory negligence became a total bar. But 



152 

worked out on the basis of ethics, if we were able to take 
each case by itself, I do not see why the injured party, 
speaking academically, should be debarred from recovery, 
though guilty of contributory negligence. Both parties 
are guilty of legal fault ; and if it could be so considered, 
the equitable basis would be to do as they do in admiralty : 
distribute it on an equitable basis. 

Chairman Stone : I do not know whether you got my 
question exactly. Where the negligence of the carrier 
consists wholly of the negligent act on the part of the 
employe injured or killed, can there be any recovery! 

Mr. Cary: To answer that question properly, I will 
answer it in this way : I do not think there could be any 
recovery in that case, for the reason that there would be 
no legal fault on the part of the defendant. 

Chairman Stone: Might not the carrier be repre- 
sented by the employe in that case, and the negligent act 
be committed, not merely by the employe, but by the 
employer ? 

Mr. Cary: After all, you must prove negligence as 
the proximate cause of the injury. I will put the propo- 
sition in another way, viz.: Where the plaintiff's con- 
tributory negligence was the proximate cause of the in- 
jury (and, of course, one of the theories of contributory 
negligence is that it is based on proximate cause), then 
it may be said, if there are not two proximate causes at 
the time, that the defendant's negligence was the remote 
cause of the injury. Can there be a recovery in that case? 
That seems to me to be the same proposition you are put- 
ting. That is, if the plaintiff's negligence was the whole 
cause of the injury, can the defendant's negligence be 
anything except the remote cause of the injury or not the 
cause at all? If it be not the cause of the injury at all, or 
be remote, there is no right of recovery, because this Act 



153 

is based on the theory that the defendant must have been 
guilty of negligence, and, as I interpret the Act, I should 
say of legal negligence, or the proximate cause. 

Mr. Waller : In connection with this section now un- 
der discussion, if we assume at the outset that Congress 
has the right to enact this law regulating the relation 
between master and servant, it would seem that Congress 
would also have the right to abolish the theory of con- 
tributory negligence as a defense of the master. Con- 
gress has abolished the fellow-servant doctrine. This 
right seems to be conceded to it. What reason is there 
why it can not also destroy the defense of contributory 
negligence? 

With regard to the question that Chairman Stone put, 
where the injury is caused by the sole negligence of the 
person himself, it seems to me that would not be involved, 
because the fundamental principle underlying the whole 
Act is to make the common carrier liable to a servant who 
is injured through the negligence of another servant, or 
officer or agent. 

Chairman Stone : The last clause of the first section 
reads this way: 

— resulting in whole or in part from the negligence 
of any of the officers, agents, or employees of such 
carrier. . . . 

Is it your construction of this Act that that phrase 
does not include the plaintiff himself! 

Mr. Waller : It seems to me the main purpose of the 
Act was to abolish the fellow-servant doctrine. It says 
that the carrier "shall be liable in damages to any per- 
son suffering injury while he is employed by such 
carrier in such commerce, . . . for such injury or 
death resulting in whole or in part from the negligence 



'54 

of any of the officers, agents, or employees of such car- 
rier." . . . 

Now, that evidently means an employe who was in- 
jured by the negligence of some other employe. 

Chairman Stone: It does not say so. 

Mr. Waller: I think it does say so. I think that is 
exactly what it does say. True, it does not say "any 
other, ' ' but it says ' ' any. ' ' It provides that the plaintiff 
shall have the right to recover for injury caused by "neg- 
ligence of any of the officers, agents, or employees of such 
carrier. ' ' This certainly does not mean the negligence of 
the employe injured. It speaks of "the officers, agents, 
or employees. ' ' It does not refer to the injured employe, 
when it speaks of "the employees." 

Chairman Stone: Suppose an engineer is in charge 
of a train and disobeys a positive order, and is killed. 
Can his personal representative sue the railroad carrier? 

Mr. Waller : I think not, under this Act or under any 
other law, if that is the sole cause of the accident. 

Mr. Rosser: I would not construe it that way, if it 
was possible to construe it any other way. 

Mr. Waller: My idea is that the purpose of the Act 
was mainly to destroy the fellow-servant doctrine, and 
where a man is injured through his own negligence there 
is no remedy and no right of action under the Act. 

Mr. Helm : I want to call your attention to something 
in Section 3, where it says : 

— but the damages shall be diminished by the jury 
in proportion to the amount of negligence attributa- 
ble to such employee. 

In order to have such proportion or ratio, you must 
have two terms. One term is to state the amount of negli- 
gence attributable to the employe, and the other term is 



155 

stated in the Act. Now, is the other term the amount of 
negligence of the employer or the amount of negligence 
of the employe referred to in the first section? Mr. Cary 
seems to think it is the amount of negligence of the em- 
ployer ; but it might just as well be the amount of negli- 
gence of the other party, the employe. 

Mr. Cary : But you have at the end of the section, I 
say, certain duties which are peculiar to the employer; 
you have defects in i i cars, engines, appliances, machinery, 
track, roadbed, works, boats, wharves, or other equip- 
ment." Those are the duties which are peculiarly the 
duties of employers. 

Mr. Bobbins : Now you are relying on the principles 
of positive law, and not fundamental law. 

Mr. Cary: Does this Act change the doctrine of 
respondeat superior at all! 

Mr. Bobbins : There is no doctrine, you may say, of 
respondeat superior in strictly Fedoral law. Our Federal 
courts have, of course, applied the doctrine of respondeat 
superior; but they have applied it as part of the State 
law. 

Mr. Cary: In other words, this is creating substan- 
tive law for the first time. 

Mr. Bobbins : For the first time. 

Mr. Helm: Do you mean there is no such thing as 
liability for the act of another under the Federal law? 

Mr. Cary : None at all. May I make a suggestion, in 
addition! I think it is well enough for us to reflect (I 
do not express an opinion) as to whether, if this Act re- 
sults in mulcting the railroad company in damages to a 
person for an injury directly caused by his own fault, it 
does not so violate the sense of right as to constitute the 
taking of property without due process of law. 

Chairman Stone: That is the proposition I had in 
mind. 



156 

Mr. Bobbins: That has not been discussed, and I 
think that is worthy of very careful consideration. I re- 
call a case (I do not remember where I saw it, but I think 
it was in the Supreme Court of the United States) where 
a man murdered a testator in order to inherit his prop- 
erty under the testator's will, and the court refused to 
allow him to inherit. 

A Member : That was a Tennessee court. 

Mr. Bobbins : It may have been a Tennessee court. I 
do not remember. The court decided so in the absence 
of any positive provision in the law, on the ground that it 
was fundamental. I do not know that we are dealing 
with such a fundamental here. Take the suggestion of 
the Chairman and modify it so that it will be that train 
orders were given to the conductor and the engineer. 
Each is held responsible for obedience to that order. Now 
the accident can not happen, generally speaking, if either 
one recognizes the order, and it can only happen because 
they both neglect the order. Now, the case arises in which 
the engineer is killed, through neglect on the part of both 
employes to recognize that order. Though there is negli- 
gence on the part of another employe, the conductor, yet 
the direct and proximate cause of the death of that en- 
gineer is his own act as the representative of the com- 
pany. Now, I must say that I think there is ground in 
this Act for a good deal of contention for him to get a lot 
of damages out of the company for an injury to him which 
happened directly and proximately through his own negli- 
gence. But I think it is repugnant to the Constitution. 

Mr. Trabue: I should answer this Question No. 12 
in the negative : That there is no constitutional objection 
to the adoption by Congress of the rule adopted in Sec- 



157 

tion 3 of this Act, assuming that the Act itself is a proper 
regulation of commerce. 

The question is based, doubtless, upon the proposition 
that it is taking the property of the company without due 
process of law, or contrary to that inherent principle of 
justice indicated by Mr. Robbins. But in the law of mas- 
ter and servant, wherever the master is held liable in 
damages he is held liable for the act of another. But 
this has never been a sufficient objection to liability. The 
master has been held liable in such cases from a principle 
of public policy ; that is, that he should, as regards third 
persons, be held to act through the person that he had 
employed to do his work. Therefore, although he him- 
self is blameless so far as the act itself is concerned, he 
is held responsible for the act of the other. Now, whether 
he is responsible entirely for the act of one person or an- 
other depends on what the public policy is, and that policy 
is for the Legislature to determine. We have all en- 
countered, in a number of States, examples of cases where 
contributory negligence is no defense. In the State of 
Tennessee there is a statute making a railroad company 
liable where a train on a track collides with a vehicle or 
a pedestrian at a crossing, and the question of contribu- 
tory negligence does not arise, except to diminish the 
damages. 

In Kentucky we had on our statute books the offense 
that we called "wilful neglect," and contributory negli- 
gence was no defense. In each instance it was a question 
of policy. It is a question of policy whether the master 
shall be liable for the act of the servant, the master being 
liable, not for his own act alone, but for the act of an- 
other. 



■58 

While, therefore, the theory of exemption, as we know 
it, for contributory negligence, is that the damage arises, 
not from the act of the master, but from the proximate 
cause of the plaintiff's own act, nevertheless the plain- 
tiff's act is contributory and the master is still condemned 
through some other than the plaintiff, and the question 
arising is a question of policy, and the Legislature may 
regulate it. 

The contributory negligence of the plaintiff implies 
that there is the negligence of some other person involved, 
as well as the negligence of the plaintiff, which contrib- 
utes to the injury. While it might be true that it would 
be taking the property of the master without due process 
of law, if he were made liable for the negligence of the 
plaintiff as the sole cause of the injury, the Act operates 
only on the "contributory" negligence of the plaintiff. 

Mr. Smith: It seems to me the question you put is 
answered by another principle, dependent upon the rela- 
tion of master and servant. The agent who, by his negli- 
gence or disobedience of an order, does an act which re- 
sults in damage to his principal, is liable to his principal 
for the proximate damage caused by his act. 

It seems to be a very anomalous construction of a law, 
Federal or State, that would give an absolute right of 
action to one man against another for an act done 'by 
himself and for which he is himself liable to such other, 
for all resulting damages, and which would limit the 
effect of the wrongdoer's fault to a reduction of the 
amount of his recovery. If the statute were to be so con- 
strued, I take it that when a suit is brought under it by 
a person insolvent, whose fault was the sole cause of the 
injury, a court of equity would enjoin its prosecution, or 



159 

the issuance of an execution upon any judgment rendered 
therein, until a counter judgment could be obtained 
against the plaintiff, and would then offset the two judg- 
ments, the one against the other, and as the measure of 
recovery in the second suit would be, at least, equal to 
that in the first, no benefit could result to the plaintiff 
from the first suit; where the injured person is solvent, 
the result would be that he would recover of the carrier 
and the carrier would recover a like amount from him. 

I take it that any construction of a statute that leads 
to such a result would certainly be an absurd construction 
and one that could not be maintained. 

Mr. Hunton : Section 3 of the Act is, in part, as fol- 
lows: 

— but the damages shall be diminished by the jury 
in proportion to the amount of negligence attributa- 
ble to such employee. 

If the only negligence of which the employer had been 
guilty was the negligence of the employe bringing the 
action, the negligence of both would be exactly the same. 

It seems probable that the courts, under such circum- 
stances, would give a broad construction to the word 
"diminish," and hold that there could be no recovery, 
but that the damages occasioned by the negligence of the 
employer were not only diminished, but wholly wiped out 
by the negligence of the employe, which alone constituted 
the negligence of the employer and caused the injury. 
The Act, however, declares in very clear terms that "con- 
tributory negligence shall not bar a recovery." 

If the word "diminish" should not be construed as 
indicated above, if the jury under such circumstances 
should return a verdict for more than a nominal amount, 



i6o 

it seems reasonably clear that the court, on motion, would 
set the verdict aside. 

Mr. Smith : It certainly shows that policy. It allows 
the jury to weigh the two faults ; but I take it it applies 
where it was the same or something more on the part of 
the employe. In which case there could be no recovery. 

Mr. Lindley: May I ask this: If the contributory 
act of the servant also caused the employer other dam- 
age, in that it injured several other persons, thereby giv- 
ing those persons a right of action against the employer, 
as it would, for the very act of the employe, could the 
employer set the damages thus suffered off against the 
employe in his action for damages, thereby not only wip- 
ing out all that is due him, but making a balance in favor 
of the employer! 

Mr. Hunton: You could not make that offset under 
this statute. 

Mr. Lindley: Could you in a State that permits a 
recoupment in such an instance as that! 

Chairman Stone : I will have to refer Mr. Lindley to 
the lawyers from some State where such recoupment is 
allowed. 

Mr. Lindley : There are certain States that allow re- 
coupment in actions of tort arising out of the same tort. 

Mr. Brewster: I wanted to say this: There is one 
difficulty that perhaps the discussion does not touch, and 
perhaps it is one that the Chairman has reference to. 
There are two people who are entitled to an action. This 
Act creates a cause of action in behalf of two people. 
First, in the party who is injured, but who is not dead. 
The discussion by some of the gentlemen indicated that 
he could not recover as suggested by them, because he 
caused the damage and would be liable to his principal 



i6i 

or master for the consequences of his own act. But this 
statute creates a cause of action in another person. It 
says in case the injury results in death, a cause of action 
is created in favor of his personal representative. Now, 
there has been some trouble growing out of these different 
causes of action and it has involved much judicial dis- 
cussion in the courts. For instance, the question arose 
where a man was injured and settled his case and died 
afterwards as a result of the injury, and under the law 
his widow or his representative had a right of action for 
his death. The question arose whether his settlement 
would settle the cause which was given to the widow or 
the representative. Some courts have held one way and 
some have held another. 

In this Act it is provided that the injured man may 
bring an action, and doubtless the law of contributory 
negligence is applicable in that case; but this Act does 
not make any provision that if his personal representa- 
tive, as it is provided here, shall bring an action, that 
contributory negligence has anything to do with it. 

Under the law of Georgia that question is a very prom- 
inent one and it has been decided long ago : That the 
right of the widow to recover (and this is provided for 
by statute) depends on the right of the employe to re- 
cover ; and if he could not recover if he were in life, she 
can not recover. But this Act does not provide that. 

Chairman Stone : Are you not mistaken in that state- 
ment! I will read a portion of Section 3 to you: 

That in all actions hereafter brought against any 
such common carrier by railroad under or by virtue 
of any of the provisions of this Act to recover dam- 
ages for personal injuries to an employee, or where 



l62 

such injuries have resulted in his death, the fact that 
the employee may have been guilty of contributory 
negligence shall not bar a recovery, but the damages 
shall be diminished by the jury in proportion to the 
amount of negligence attributable to such employee. 

Does not that allow the same plea to be made, or the 
same diminution of the damages to be made, in the case 
of death, as if the employe were living and suing for his 
own injuries? 

Mr. Brewster : Possibly it does. It was a provision 
I had overlooked at the time I arose. But in the discus- 
sion they were proceeding on the line of the negligence 
of the injured party. Of course, if it bears that construc- 
tion it would be an application of the principle of the 
Georgia statute, that the right to recover would depend 
on the conduct of the injured party. 

Mr. Warfield : I think it is quite important for us to 
try to find out what the meaning is of the phrase "con- 
tributory negligence," as used in this Act. I assume that 
that phrase is to be construed in the light of the law as it 
heretofore existed. It is a cardinal principle of the law : 
causa proximo,, non remota, spectatur. I think we ought 
to consider whether or not the ' ' contributory negligence ' ' 
in this statute is to be applied in a case where the negli- 
gence of the employe who is injured is a proximate cause 
of the injury. I have been talking on that point with my 
friend, Mr. Keeble. He has thought it out. 

Mr. Keeble: Mr. Chairman, before taking up that 
question, I desire, for a moment, to discuss the question 
which you propounded, as to whether or not there could 
be any recovery where the negligence of the master was 
only the negligence of the injured person, his employe. I 
agree with Judge Waller in the statement which he has 



i63 

made on that position, and I think the Act itself will bear 
out that interpretation, regardless of looking outside of it. 
Let us see what it says in regard to the question of the 
reduction or modification of the damages. In Section 3 
it says : 

— but the damages shall be diminished by the jury 
in proportion to the amount of negligence attributa- 
ble to such employee. 

If all of the negligence that caused the injury is at- 
tributable to the employe who is injured, then, under the 
express language of the statute, the jury would be com- 
pelled to declare that there were no damages that were 
not abated by reason of the negligence of the employe. In 
other words, if one-quarter of the negligence, if you can 
use arithmetical terms, was the negligence of the master 
and three-quarters of the negligence was the negligence 
of the servant, then, if they arrived at a damage of $4,000, 
the jury would bring in a verdict for $1,000. But if the 
jury and the court could see that all the negligence caus- 
ing the injury was attributable to the plaintiff, it would 
necessarily follow that the jury would have to abate the 
whole amount, and leave nothing for the plaintiff. 

Mr. Harrison: Do you think the court could in that 
case direct the verdict of the jury? 

Mr. Keeble: I certainly do. 

Mr. Harrison: Would it not invade the province of 
the jury for it to do that? 

Mr. Keeble: I think not. In reply to Mr. Cary, I 
would say that if we used the word " diminish" in 
a strictly etymological sense, it would necessarily 
imply it was not going to take it away entirely. 
But we should not construe the words of a stat- 



164 

ute in a strictly etymological sense. The court would 
look at the whole meaning of the Act; and if it was 
necessary to diminish it to nothing or take it away en- 
tirely, I think the court would hold that that was the rea- 
sonable interpretation of it. I think so, not only from the 
language of the Act itself, but also from one of the things 
brought out by Mr. Eobbins, namely, that it would shock 
the conscience of any court to give a judgment against an 
employer for an injury to an employe which was caused 
wholly by his own fault. I think, furthermore, that when 
we look at the history of the agitation which resulted in 
this Act, we will find, as was said by Judge Waller, that 
it was all the result of the agitation on the part of em- 
ployes against the fellow-servant doctrine. So I do not 
think there is any doubt about the proposition that if 
the negligence of the master is only the negligence of 
the person injured, through the doctrine of respondeat 
superior that there can be no recovery. 

In regard to the question asked by Mr. Warfield, con- 
cerning contributory negligence, I do not feel able to give 
much light, further than this : I think lawyers and courts 
have been careless in the use of the term "contributory 
negligence. ' ' Too often we have used the term ' ' contribu- 
tory negligence, ' ' when really it should not have been used 
at all. In other words, our courts frequently say that if 
the "contributory negligence" of the injured party was 
the proximate cause of the accident, then he can not re- 
cover. I think the use of the term "contributory negli- 
gence " there is improper, and that the correct wording 
would be that if the accident resulted from the negligence 
of the employe, then there can be no recovery. Contribu- 
tory negligence necessarily implies a basis of negligence 
on the part of the other person, and not only of negligence 



>6 5 

as a matter of fact in some remote particular, but the 
negligence that caused or contributed directly to the in- 
jury. I believe that in laying down that broad proposi- 
tion, there is still room to say, under this Act, that where 
the master has been guilty of some negligence in any par- 
ticular provided for by this Act, but where the court can 
see that, as a matter of law, that was not a proximate 
cause of the accident, was not the cause of the accident 
at all, there can be no recovery. But if the court can see 
that the negligence of the servant was the cause of the 
accident, the reason without which the accident would not 
have occurred, then there can be no recovery under this 
Act, for the Act says that the common carrier by railroad 
shall be liable whenever an employe is injured as a result 
of the negligence of the master, or "any of the officers, 
agents or employees." 

Now, that must have a legal meaning, and I do not 
believe at all that the courts are going to say — 

Chairman Stone: Eight in that connection, do you 
quote the Act correctly? It says: 

— resulting in whole or in part from the negligence 
of any of the officers, agents, or employees of such 
carrier. 

Mr. Keeble : I did not use the exact language of the 
Act, but I think I used the meaning of it, because it means 
that the injury must flow as the natural result, without 
any intervening cause that could have been warded off 
by the party, so plainly as to be the primary and sole 
cause of the injury. In other words, I believe that if an 
engineer takes charge of an engine, and it is perfectly 
patent and without contradiction in the evidence, that 
when he takes charge of that engine he knows that the 
engine is in a defective condition and he has full oppor- 



1 66 

tunity of making report and fails to do so, but uses that 
engine, he can not then, in the face of those facts, use 
that instrumentality of commerce, and claim compensa- 
tion under this Act. 

Mr. Cary : It is more than an assumption of risk. 

Mr. Keeble: It is more than an assumption of risk. 
An assumption of risk, it seems to me, means a general 
risk which is not specifically defined and not ever present 
in the mind of the party injured. It arises out of an 
implication of law that a man knows, and must know, 
what he could know. But where it is perfectly patent 
that it is evidently known to him, and every opportunity 
of protection is known to him, and he recklessly goes into 
danger, I believe you can say, under the established rules 
of negligence, that the injury resulted wholly, and not 
in part, from the negligence of the employe, and not at all 
from the negligence of the master. 

Chairman Stone: I will read Question 13: 

13. Noting the last clause of Section 3 and the 
whole of Section 4, is there any constitutional objec- 
tion to either of those provisions? 

The last clause of Section 3 is : 

Provided, That no such employee who may be 
injured or killed shall be held to have been guilty of 
contributory negligence in any case where the viola- 
tion by such common carrier of any statute enacted 
for the safety of employees contributed to the injury 
or death of such employee. 

And Section 4 reads as follows : 

Sec. 4. That in any action brought against any 
common carrier under or by virtue of any of the pro- 
visions of this Act to recover damages for injuries 
to, or the death of, any of its employees, such em- 



167 

ployee shall not be held to have assumed the risks of 
his employment in any case where the violation by 
such common carrier of any statute enacted for the 
safety of employees contributed to the injury or 
death of such employee. 

The question is whether there is any constitutional ob- 
jection against either of those provisions. It seems, per- 
haps, from the discussion already had this morning, that 
we have answered those two questions. I believe the 
trend of the discussion led to the conclusion that there 
was no constitutional objection to a provision of that 
kind. To take away the defense of contributory negli- 
gence altogether, would lead to the conclusion that it 
might be taken away, as well as the doctrine of assumed 
risks, in certain contingencies. I will be glad to hear any 
discussion, however, of the propositions involved in this 
question. 

Mr. Warfield: I do not wish to argue it, but if the 
argument just made by Mr. Keeble is sound, then must 
not these two sections be read in the light of that argu- 
ment, and must they not also be read in the light of the 
question as to whether the Fifth and Fourteenth Amend- 
ments mean the same thing? The reasoning on the last 
proposition is, I think, obvious that it would be establish- 
ing a rule for one class of people and not extending it to 
anybody else. Let us assume the case stated by Mr. 
Keeble. Here is an engineer who goes upon an engine, 
the defects of which he knows all about. He is a free 
agent. He is not compelled to take the engine out, but, 
knowing conditions, he does take it out, and the accident, 
as to him, is the very result that might reasonably have 
been expected to flow from his taking it out. 



i68 

Chairman Stone: Under the original Safety Appli- 
ance Act, the carrier was deprived of the defense of as- 
sumed risk, in case the carrier was sued for damages re- 
sulting from injury on account of failure to comply with 
the law. I believe that principle was upheld in the John- 
son case, 196 U. S., where it was said that it was lawful 
to take away the doctrine of assumed risk. 

Mr. Warfield : It is only fair to state that the John- 
son case was decided without any question as to the con- 
stitutionality of the Act being raised. That question was 
not raised. Whether the decision would have been the 
same if all the constitutional questions which have since 
been suggested in connection with that class of legisla- 
tion had been argued at the time, I think may be very well 
doubted. 

Chairman Stone: Has not the court recently, in a 
case involving the Safety Appliance Act, upheld the 
validity of that law? 

Mr. Warfield: In the Johnson case they swore the 
horse was sixteen feet high, and I suppose they will stick 
to it. 

Mr. Helm: If Congress had the right to pass the 
Safety Appliance Act, I can see no reason, if necessary 
to completely enforce it, why it would not have the power 
to say, ' ' If these provisions are violated we will not hear 
any evidence of contributory neglect or having relation 
to the fellow-servant doctrine." 

Mr. Trabue : I think that would be true as to those 
servants of the railroad company that clearly come within 
the ■ ' railroad risk, ' ' within the meaning of the cases cited 
by Mr. Warfield. But the servants engaged in building 
a railroad station assume no greater risk than those en- 
gaged in building a ' ' skyscraper. ' ' 



169 

Chairman Stone: The case referred to, the Iron 
Mountain Railway Co. v. Taylor, Administratrix, decided 
May 18, 1908, held that the power delegated there to the 
Railway Association and the Interstate Commerce Com- 
mission to fix the standard height of couplers, was consti- 
tutionally delegated. 

Mr. Warfield: Does that opinion quite answer our 
question? Let us suppose that an employe, knowing full 
well that a certain draw-bar does vary from a certain 
height, who is not compelled by reason of any order, or 
emergency, or for fear of losing his employment, to go 
in and make that coupling, does it, and is injured: The 
question then being, can he recover? It seems to me it 
harks right back to the question Mr. Keeble was discuss- 
ing. 

Mr. Keeble : Do you not think there is some differ- 
ence between the power of courts, in the interpretation 
of the Act of Congress, in regard to an Act in which 
there is a specific duty imposed upon the carrier, and the 
construction of a general Act of this character? 

Mr. Warfield : I think there may be. 

Mr. Keeble : Do you not think that perhaps it might 
be said, as a matter of public policy, that a railroad com- 
pany that has failed or refused to comply with the Safety 
Appliance Act shall be deprived of the right to rely on 
the contributory negligence in that case, where it would 
not be proper to say so, where the company was not guilty 
of the violation of any specific statute? Consider the 
statutes which are found in many States, the fencing stat- 
utes, where the railroad company is made absolutely lia- 
ble for the death of all stock that is killed upon a railroad 
track, where it has not complied with the statute of the 



170 

State compelling the railroads to fence. The Supreme 
Court of the United States, as you know, has held that 
those Acts were good, basing their decision upon the 
power of the government to demand of a railroad com- 
pany to do specific things for the general good, rather 
than to govern any particular class of actions against it. 

Mr. Warfield: I am probably wrong about that and 
you are probably right. 

Mr. Keeble: I think there is a distinction between 
those cases, and I do not see why a fight can not be made. 

Mr. Trabue: It is true as to all those employes ex- 
cept those who come distinctly under that risk. 

Chairman Stone : Violation of the statute must have 
contributed to the accident ; must, ' ' in whole or in part, ' ' 
have been the cause of the accident, before the doctrine of 
assumed risk is taken away. 

Mr. Warfield: I think the claimant would have to 
show that before he would have any standing under the 
statute. 

Chairman Stone : Where, in each instance, the viola- 
tion of the statute contributed to the injury or death of 
such employe. 

We now come to a very important question, to which 
I think we ought to give due consideration — Question 14. 

14. Noting Section 3 of the Act, what statutes 
are therein included, Federal statutes alone or in 
addition to those, State statutes and municipal ordi- 
nances 1 

Mr. Brownell : . I call attention to what seems to be 
the effect of this proviso upon the measure and rule of 
damages in cases that are covered by it, and it empha- 
sizes the importance of ascertaining whether the statute 



I 7 I 

referred to includes all Federal statutes, which are very- 
few and cover practically few cases, and also State stat- 
utes, as well as ordinances. 

Section 3 provides that where an injured employe has 
been guilty of contributory negligence, the recovery in 
damages is diminished in proportion to his negligence, 
except in cases covered by the proviso; and the proviso 
being that no such employe shall be deemed to have been 
guilty of any contributory negligence in any case where 
the violation by the common carrier of any statute en- 
acted for the safety of employes contributed to the injury 
or death, it would seem that in any such case there would 
be no opportunity to mitigate or reduce the damages. In 
a great many cases there are rules enacted by the State 
legislatures in regard to furnishing a safe place for work, 
safe appliances, roadbed, etc. If there be a violation of 
any State statute with regard to furnishing a safe place 
to work, or in regard to the character of the appliance, 
then whatever negligence the injured employe was guilty 
of is declared by this proviso not to have been negligence 
at all ; and would not the employe, under the terms of the 
Act, recover all the damages resulting from the injury? 

There are very few Federal statutes enacted for the 
safety or protection of the employe, and in some the lia- 
bility imposed for the violation of the statutes is denned 
and covered by the Act itself ; but a very large percentage 
of accidents where contributory negligence on the part of 
the employes is involved, are cases where it may be 
claimed a State statute was violated, if such State statute 
is considered as being still applicable. 

Mr. Cary : May I make the suggestion that there are 
some cases where the negligence of the employe is of such 



172 

a character that it constitutes the proximate cause of the 
accident irrespective of the violation of some statute on 
the part of the employer? 

Mr. Brownell : In answer to Mr. Cary, I will say that 
it may well be that there are some cases (it may be that 
the case suggested by Mr. Keeble is one) where the negli- 
gence of the employe is of such a character that it con- 
stitutes the proximate cause of the accident entirely irre- 
spective of the violation of some statute on the part of 
the employer. It may be that in those cases this proviso 
would have no operation, because the violation of the stat- 
ute would not be a contributing cause of the accident ; but 
in the great bulk of cases, that is not clear. There are 
many eases where the violation of the State or other stat- 
ute has contributed to the injury, or where there is at 
least a question for the jury as to whether it did not con- 
tribute to the injury, and in all those cases a serious 
question may arise as to whether, under the provisions of 
that Act, there is any diminution of damages. 

Mr. Stevens : It does not seem to me likely that the 
courts will construe this statute in such a way as to make 
the law differ in different parts of the country, or in such 
a way as to amount to a re-enactment into this statute 
of all the various State statutes upon this subject of lia- 
bility. Yet if it should be construed to cover State stat- 
utes, it would result in a different law for every State in 
the Union, and if it should be held to include municipal 
ordinances, the difference would be still greater, for there 
would perhaps be a different law for every municipality. 

It seems to me that is a highly improbable thing. I 
think the ruling that is followed by the Circuit Court of 
Appeals for the Sixth Circuit, and the rule in the dissent- 



*73 

ing opinion in the Colorado case, where the scope of the 
Safety Appliance Act was under consideration, are per- 
haps applicable to this question. In the Sixth Circuit 
Court of Appeals, the court held that the Safety Appli- 
ance Act applied to a railroad wholly within one State, 
engaging, by through bill of lading or otherwise, in the 
transportation of interstate commerce. 

Chairman Stone : Is that the Geddes case you speak 
of? 

Mr. Stevens : Yes ; I think that is it. They held that 
the Interstate Commerce Acts, upon different subjects, 
are to be construed together, taking the 1887 Act as the 
foundation. The opinion goes on to say that in the first 
section of the 1887 Act it is declared to what carriers the 
law shall apply, namely, to those having lines of road ex- 
tending from one State to another, and those engaged in 
interstate commerce that have common arrangements 
(you will all recall the phrase in the first section) with 
other companies. So it was held that the latter Act, namely, 
the Safety Appliance Act — where was used the expres- 
sion "engaging in interstate commerce" or "engaged in 
interstate commerce" — applied to those companies that 
were engaged in interstate commerce within the meaning 
of the primary Act upon the subject. 

Now, we find the same thing in this case. We find the 
clause "engaged" or "engaging" in interstate commerce, 
and we find references in this particular subdivision to 
other statutes. 

It seems to me that the court will hold that all the 
time Congress had in mind its own legislation and not the 
legislation of the forty- six different States of the Union. 

Mr. Warfield : Supplementing what Mr. Stevens has 



174 

just said, I think Judge Cochran will recall that in his 
argument before the House Committee last winter, he 
called attention to the use of the words as contained in 
the Sterling Bill, '' i any law, ' ' and pointed out the difficul- 
ties with which we would be confronted with respect to 
State statutes and municipal ordinances, and those words 
were subsequently changed in the statute to read "any 
statute;" and my recollection is (and it has been con- 
firmed by something that has been said to me by a gentle- 
man who is here with us and who is familiar with those 
things) that the representatives of the labor organiza- 
tions, who were urging this legislation, when they came 
to that part of the statute, treated it as referring only 
to the Federal statutes, and it was their contention that 
it applied to no other class of statutes; in fact, it was 
conceded that it did not apply to any statutes other than 
Federal statutes. 

Chairman Stone : If there is no further discussion on 
Question 14, we will proceed to the consideration of Ques- 
tion 15, which is as follows: 

15. Eeferring to the same subject, what statutes 
are included in the description "enacted for the 
safety of employes," e. g., by way of contrast, the 
Safety Appliance Law, on the one hand, and State 
statutes and municipal ordinances limiting the speed 
of trains or requiring signals in approaching high- 
ways, on the other hand? 

It seems to me that that is practically embraced by 
the other question. 

Mr. Harrison : I will state that most of these statutes 
would not come under the provisions of this Act, because 
of a limitation contained in the proviso of Section 3, i i who 
may be injured or killed shall be held to have been guilty 



l 7S 

of contributory negligence in any case where the viola- 
tion by such common carrier of any statute enacted for 
the safety of employes contributed to the injury or death 
of such employes." Those referred to in the last ques- 
tion were evidently State statutes, for instance, relating 
to signals at crossings, or stopping of trains at intersec- 
tions, or blowing of whistles at public roads, that have 
been construed to mean for the protection of the parties 
at those places, and not the employe; that they were en- 
acted for the general purpose of safety to others. This 
Act is confined, by its very terms, to those acts and stat- 
utes enacted for the safety of employes. 

Chairman Stone : I think that is right. It is so lim- 
ited. Statutes enacted for another particular purpose 
would not be embraced by the class of statutes referred 
to in the Act. 

If there is no further discussion, we will pass to Sec- 
tion 16. 

16. Eeferring to Section 5, can Congress pro- 
hibit the making of a contract of employment which 
releases in advance actions for negligence? 

Mr. Helm: It seems very difficult for me to under- 
stand how the right to control a contract before any com- 
merce was entered upon when the employe comes into 
the employment of the railroad company, can be said to 
be a regulation of commerce. These contracts are usually 
made, and are supposed to be an insurance for the benefit 
of the employe. Now, it does seem to me that Congress 
would not have the right, under the guise of a power to 
regulate commerce, to control the right of that employe 
who is entirely able to make contracts. He thinks it is 
for his benefit, or he would not go into it. As a rule 



176 

they are for his benefit, and it seems to me that Congress 
can not be said to have the right to prohibit the making 
of such a contract, when it is limited in its powers, in 
this respect, to the regulation of interstate commerce. 
We have a number of cases in the State courts and in the 
Supreme Court, holding expressly that the power to con- 
tract is inviolable and protected, not only by the State, 
but also by the United States Constitution. I do not 
think that this can be said to be in any sense a regulation 
of commerce, and if the Addyston Pipe case is still the 
law, the control of Congress over such contracts must be 
denied. 

Chairman Stone: I call your attention to the Bark 
Eudora case, in 190 U. S., where, in an opinion delivered 
by Mr. Justice Brewer, an Act of Congress was upheld 
as valid under the commerce clause, which prohibited the 
payment of seamen's wages in advance, and that seamen 
who had shipped on a British vessel from an American 
port to a foreign port and returned to an American port, 
having received a part of their wages in advance, might, 
after the completion of the voyage, recover, by libel filed 
against the vessel, the full amount of their wages, includ- 
ing advance payments, although such payments were not 
due, either under the terms of the contract, or under the 
laws of Great Britain. 

Mr. Helm : Was that not under the power to control 
navigation, a power which has been held by the Supreme 
Court to be broader than the power granted under the 
commerce clause? 

Chairman Stone : I think they put it under the com- 
merce clause. 



Mr. Lindley: While they put it under that clause, 
did they not say that such contracts, from time immemo- 
rial had been treated by themselves, although they put it 
under the commerce clause? 

Chairman Stone: I think something like that was 
said in the opinion. Would not the Fifth Amendment 
have the same bearing upon a contract of that kind, as 
upon one that is prohibited by this Employers' Liability 
Act? 

Mr. Warfield : This Act has to look alone to the com- 
merce clause for its support, while the statute involved 
in the Bark Eudora case could very well have been sup- 
ported by the judiciary clause. It might be well to read 
what Mr. Justice Moody said in his dissenting opinion. 
Mr. Justice Moody says (207 U. S. 525-6, 532-3) : 

It is difficult to conceive how legislation may ef- 
fectively control the business if it can not regulate 
the conduct of those engaged in the business, while 
engaged in the business, in every act which is per- 
formed in the conduct of the business. The business 
of transportation is not an abstraction. It is the 
labor of men employed with the aid of instrumentali- 
ties, animal and mechanical, in carrying men and 
things from place to place. In every form of trans- 
portation, from the simplest to the most complex, 
whether the man carries the burden on his back, or 
drives an animal which carries it, or a locomotive 
which draws a car which carries it, the one and only 
constant factor is the labor of mankind. I am quite 
unable to understand the contention made at the bar 
that the power of Congress is to regulate commerce 
among the States and not to regulate persons en- 
gaged in commerce among the States, for in the case 
of transportation at least the labor of those engaged 
in it is commerce itself. How poor and meagre the 
power would be if, whenever it was exercised, the 
legislator must pause to consider whether the action 



i 7 8 

proposed regulated commerce or merely regulated 
the conduct of persons engaged in commerce. . . . 
Have we so weak a system of government that the 
only part of it which is clothed with direct authority 
over the commerce in which the casualties happen is 
powerless? What does the "direct supervision, con- 
trol, and management " amount to if it does not in- 
clude the power to pass any laws really calculated 
to lessen the great dangers of public travel. 

That is the line upon which those gentlemen will prob- 
ably sustain the right to limit your contract. 

Mr. Brownell : Will you read, also, what Mr. Justice 
Moody has to say with respect to this particular ques- 
tion! 

Mr. Helm: On page 539. 

Mr. Warfield: He says: 

It is not necessary in this case to determine how 
far, if at all, the requirement from the States of the 
equal protection of the laws made by the Fourteenth 
Amendment is included in the requirement from the 
nation of due process of law made by the Fifth 
Amendment to the Constitution. 

Mr. Helm: There is another portion of Mr. Justice 
Moody's opinion that I have in mind. I mean that por- 
tion in which he throws out an intimation that that pro- 
vision of the law is not constitutional. 

Mr. Galvin : It is in the next paragraph, which reads 
(539-40) : 

I have confined my observations up to this point 
to the first three changes in the common law made 
by the statute. The fourth change, that forbidding 
the employee to make a contract releasing his em- 
ployer from the consequences of his negligence, is 
open to a possible objection not common to others. 
It is asserted that this part of the Act violates the 
right of free contract which in some cases this court 



179 

has protected against the exercise of the legislative 
power. Without intimating any opinion on that sub- 
ject, it is enough to say that that part of the statute 
is separable from and independent of the remainder, 
and may stand or fall by itself, and that no question 
concerning it is raised in these cases. 

Chairman Stone : It seems that we have reached the 
end of the discussion of Question 16. I will read the 
next question: 

17. Assuming the affirmative of the above, does 
Section 5 forbid a contract under which the employe 
is granted an election, to be exercised after injury, 
between an insurance benefit and a right of action 
for such injury, and which contract makes such elec- 
tion final! 

Mr. Hamilton : I think it was the consensus of opin- 
ion when Judge Humphrey spoke, that that question 
should be answered no. It seems to me that position 
is well taken. The action by the employe, after an acci- 
dent or injury, in making the election, is substantially a 
settlement by compromise, and I do not think this Act is 
intended, nor can it by its terms be fairly construed, to 
forbid it. I think such statutes as that in the States, 
that is, statutes with relation to contracts to release in 
advance from the consequences of negligence, have re- 
peatedly been upheld as valid. 

But Question 17 is a very different proposition, in- 
deed. Certainly, after a man is injured he may make a 
valid compromise agreement for the settlement of his 
claim. That is all that is invariably done in a great many 
of these Eelief Associations of railroads, and I do not 
think there can be much question about Question 17 be- 
ing correctly answered no. I would like to hear from 



i8o 

other gentlemen here, if they have any doubt about it. 
I think the Supreme Court has repeatedly heretofore 
upheld such contracts made through the Belief or Benefit 
Associations connected with railroads. I do not think 
there is anything in the statute which pretends to say it is 
not valid still. 

Chairman Stone : I understand you do not think the 
Act prohibits a contract of that sort. 

Mr. Hamilton : That is what I think. 

Mr. Bobbins : May I ask Mr. Hamilton whether there 
is anything to the point, which I thought was the real 
point of this question, as to the invalidity of a contract of 
insurance, which, notwithstanding the insured has paid 
money into the insurance fund, makes him forfeit all 
right to insurance if he brings suit for damages under 
the Act! 

Mr. Hamilton: That is the real question, and that 
contract has been repeatedly upheld heretofore. He may 
take it, but need not take it. His contract is not made 
with the railroad company. It is a contract made with 
a number of people who have contributed certain funds 
for certain purposes, and the railroad is one of those con- 
tributors. It is only a part of the fund which the rail- 
road contributes, as I understand. It is not solely their 
money that goes to the employe. The employe simply 
says, "I will contribute a portion of my wages as pre- 
miums for certain protection in certain contingencies," 
and there is a condition in it that he does forfeit the 
benefit of that if he is injured and elects to sue the rail- 
road company, and that contract has been upheld by the 
Supreme Court of the United States and other courts. 

Chairman Stone : This proviso says : 



i8i 

That in any action brought against any such com- 
mon carrier under or by virtue of any of the pro- 
visions of this Act, such common carrier may set off 
therein any sum it has contributed or paid to any 
insurance, relief benefit, or indemnity that may have 
been paid to the injured employee or the person en- 
titled thereto on account of the injury or death for 
which said action was brought. 

Now, assuming that he had a contract in advance to 
make an election after the accident occurred or his injury 
had been received, to take a benefit of this kind or to 
sue for the damages he has sustained, and after the acci- 
dent had happened or injury had been received, he made 
his election and concluded to accept the benefit provided 
for it, and still brought his suit; could the carrier, in 
your opinion, under this section plead that contract of 
election in bar, or would not the only remedy be to simply 
use the amount of the benefit provided for the employe, 
and received by him, as a set-off to his claim for dam- 
ages 1 

Mr. Hamilton : I think we could plead it in bar and 
that it could not be used as a set-off under the contracts, 
as I am acquainted with them, because the man elected 
after the injury; and if he had any grounds of complaint 
with respect to anything he had paid into the relief fund, 
he could go after the relief fund or whoever held it. In 
other words, the company has the relief fund, and he may 
accept or not accept it, and it is independent of his right 
to sue the railroad company. 

Mr. Bobbins : What privity is there between him and 
the railroad in the election? 

. Mr. Hamilton: The privity is that the railroad fur- 
nishes quite a portion of the funds which tend to take 



182 

care of a man under certain conditions, where he obtains 
the benefits. The railroad company is not party to the 
contract, or not the sole party on the other side. 

Chairman Stone: The fore part of Section 5 seems 
to be very broad and comprehensive, and reads this way : 

Sec. 5. That any contract, rule, regulation or 
device whatsoever, the purpose or intent of which 
shall be to enable any common carrier to exempt it- 
self from any liability created by this Act, shall to 
that extent be void. 

Would not the contract you refer to, which you think 
would legally operate to exempt the carrier from the lia- 
bility created by this Act, be, and is it not, by the posi- 
tive letter of this statute, prohibited and declared void? 

Mr. Hamilton: I think that would be true provided 
his prior contract as to the relief fund was final, so that 
he could not sue the company if he contracted for the 
relief fund benefits. But that is not the case, as I under- 
stand it, with most of the relief funds. The man has his 
election after his injury, or the person for whom he takes 
it out or to whomsoever it is payable has the election. 

Chairman Stone: Does this proviso contemplate the 
case where an employe has availed himself of the relief 
fund and received the money, and then brings suit? 

Mr. Hamilton : I think not. 

Chairman Stone: In which case the carrier can use 
that as a set-off? 

Mr. Hamilton: No. I think this contemplates a con- 
tract made prior to the injury, and not where he has an 
election after the injury to say, "I will receive these bene- 
fits in full settlement," or "I will not." Would he not 
have a right to settle his claim after the injury? 



i«3 

Mr. Bobbins : With whom would he settle ? 

Mr. Hamilton: He wonld be settling with the rail- 
road company. 

Mr. Bobbins: He wonld be dealing with the insur- 
ance company, and that is not a settlement with the rail- 
road company. 

Mr. Hamilton : Yes ; it is, if he has bound himself to 
do it, because he still has the right of contract subsequent 
to the injury. Has he not a right to compromise his 
claim after he is injured? Has he not a right to receive 
less than he thinks he is entitled to, if he pleases to do it! 

Chairman Stone : I suppose he would, if it were not 
connected with this relief fund and the contract he had 
made with the carrier previous to the injury. 

Mr. Hamilton : It might make his claim in the relief 
fund still good ; but he could settle with the railroad com- 
pany if he pleased, and then he might go back and say, 
"My contract with the relief fund is not a fair one, and 
you must give me the benefit of what I paid. ' ' But that 
is a different question entirely. 

Mr. Cumming: What consideration would there be? 
I do not know that I understand that. If he had taken 
out this insurance before the accident, and then after the 
accident he simply gets that insurance, is he not entitled 
to anything more 1 

Mr. Hamilton: No; he is not, because the railroad 
company has largely contributed to the fund which gives 
him anything in that respect, for he gets that in any case, 
if he chooses to accept it, whether he is entitled to any- 
thing under this or any other Act. Suppose he hurt him- 
self by his own fault and under this Act he would not 
be entitled to anything against the railroad: he is still 
entitled to the benefit of this relief fund. 



1 84 

Mr. dimming : He is entitled to that anyhow, if he 
chooses to accept it. 

Mr. Hamilton: He is entitled to that anyhow, if he 
chooses to take it. 

Mr. Cumming : If he took that, wonld that be a set- 
tlement — wonld that be the consideration? 

Mr. Hamilton: If he does. That is his contract. 
There is no reason why a man shonld not release a claim 
if there is a claim made by any person. There is a con- 
sideration moving from the railroad to him because it 
largely supports this organization. 

Mr. Lindley : In a great many cases they have a con- 
tract by which they agree to furnish any deficit in running 
a hospital association. 

Mr. Hamilton : Yes ; all have it. 

Mr. Brewster: Isn't the very object of Section 2 just 
what you are now discussing? The majority report cites 
the application made in those insurance cases, so that 
that section is made to cut off just such contracts as that, 
and they give one here taken from the B. & 0. Railroad. 

Mr. Hamilton : That is a different kind of a contract 
from those I refer to. 

Mr. Brewster: That is a different kind from what 
you refer to? 

Mr. Hamilton: Yes. They have no election in that 
and it is required that their people shall join it. 

Mr. Brewster : One of the terms is this : That on the 
acceptance of this benefit they release the railroad. 
That is part of the contract. 

Mr. Hamilton: I may be wrong about the form of 
contract on the B. & 0. Eailroad. I am not very familiar 
with it. 



J 85 

Chairman Stone: We now approach a question that 
I think is perhaps one of the most important that we 
have yet had to deal with — Question 18. 

At this point a recess was taken until 3 o'clock. 



July 14, 1908—3 p. m. 

The Conference was called to order by Chairman 
Stone. 

Chairman Stone: The first question for discussion 
we have this afternoon is Question 18, which reads as 
follows : 

18. Is this Act exclusive as to rights of action 
within its terms, and does it displace rights of action 
under the common law or under State statutes in all 
cases embraced within its terms, and is there any- 
thing in Section 8 of the Act which determines one 
way or the other this inquiry? 

Mr. "Wright : Mr. Chairman, it seems to me that there 
is no question of law more thoroughly adjudicated than 
the proposition that where a constitutional Act of Con- 
gress and a State statute operate upon the same subject- 
matter, the State statute must yield to the Act of Con- 
gress, and the Act of Congress is exclusive. It is true 
that the States have from time to time passed regulative 
statutes which were apparently regulations of interstate 
commerce, but which in fact only affected such commerce. 
The courts have uniformly held that inasmuch as Con- 
gress had not seen fit to use all of the reserve power dele- 
gated to it in the Federal Constitution, this power over 
commerce, the States had a right to pass statutes which 
affected interstate commerce, and that such statutes were 



1 86 

valid provided they did not attempt to regulate interstate 
commerce. But now that Congress has seen fit by this 
Act to exercise or to use that reserve power, I do not see 
any escape from the conclusion that in so far as the sub- 
jects embodied in this statute are concerned, the Act of 
Congress is exclusive, and that any State statute em- 
bracing the same subject-matter must necessarily yield, 
so that no right of action would exist in favor of a plain- 
tiff, under State statutes, who attempted to assert his 
rights in respect of the matters mentioned in the Act. 

It is, of course, impossible to reconcile all the deci- 
sions pf the Supreme Court of the United States upon 
this subject; but it is apparent from an examination of 
authorities that the differences in opinion in the leading 
cases have not been so much upon the fundamental prin- 
ciples of the law as upon the application of these prin- 
ciples to particular facts, and upon the construction of 
the State statutes which have from time to time been un- 
der consideration by that court. 

That court has held frequently that the power to regu- 
late implies full power over the things to be regulated, 
and excludes the action of all others that would perform 
the same function on the same thing. However confusing 
may have been the decisions of the court in the past, it 
has never decided that the power to regulate interstate 
commerce is not vested exclusively in Congress. While 
in a number of cases, it has been held that a State has 
power to enact laws which affect interstate commerce, 
these statutes have been sustained, not because the State 
has power to regulate interstate commerce, but because 
they were mere police regulations and were not treated 
as regulations of interstate commerce. Statutes may af- 



i87 

feet commerce in various ways without regulating it 
within the terms of the Federal Constitution. The propo- 
sition has never been doubted, however, that a State stat- 
ute is void when it attempts to deal directly with inter- 
state commerce. Of course, the States would have a right 
to pass statutes that are not covered by this Federal stat- 
ute; they would still have a right to legislate and there 
would still be rights of action in the courts of the States 
concerning matters that are not set forth and wholly 
embraced in the terms of this Act. This Act, it seems to 
me, covers the entire domain of the negligence of fellow- 
servants engaged in interstate commerce, and it also cov- 
ers the entire domain of defects in cars, engines, appli- 
ances, machinery, roadbeds, etc., used in interstate com- 
merce, and where it can be shown that there is any chain 
of causation between these defective instrumentalities and 
appliances and the injury to the employe, the Federal Act 
is exclusive and no right of action exists either at common 
law or under State statutes in so far as the common law 
and the State statutes operate upon the subject-matter 
covered by the Federal Act. 

I am assuming, of course, that the Act is constitu- 
tional and that Congress has the power to regulate the 
instrumentalities of commerce, and also the relation of 
master and servant while engaged in interstate com- 
merce. 

Chairman Stone : Suppose an employe is engaged on 
a train that carries both interstate and intrastate com- 
merce ; may he not elect to treat himself as an intrastate 
employe, or employe engaged in intrastate commerce, and 
sue under the State statute, whenever he thinks it is to 
his advantage to do so, and is there not a right of election 



i88 

between the State statute and the congressional statute, 
in a case of that kind? In other words, does it neces- 
sarily follow that the State statute is abrogated by the 
Act of Congress? 

Mr. Wright : In other words, that the employe could 
determine for himself whether he was an interstate or 
intrastate employe? 

Chairman Stone : Could he take his choice, where the 
train carries both kinds of traffic? 

Mr. Wright : No ; I do not think so. That is a ques- 
tion for the court to determine. That goes back to a 
proposition that was discussed this morning, in which I 
think a distinction might possibly be made. 

It would be almost impossible to formulate any iron- 
clad rule to determine the line of demarcation between 
rights of action arising under the Federal law and under 
the State law ; but each case must be based upon the par- 
ticular facts at the time of each particular injury. My 
opinion is that in so far as the Act covers defective instru- 
mentalities or equipment, it is the character of the com- 
merce, or the character of the instrumentality, that de- 
termines whether or not it falls within this class of com- 
merce and whether or not it falls within the terms of this 
Act. But in so far as a right of action is given by reason 
of the negligence of a fellow-servant, I am of the opinion 
that it is the nature of the injured employe's contract of 
employment that controls. 

For instance, suppose a man is employed to run from 
Louisville to Bowling Green, both points wholly within 
the State of Kentucky, and that employe is injured by 
reason of the negligence of a fellow-servant employed in 
running between the same two points. Now, the element 



i8q 

that should control in that case would be the character 
of his contract with the company, because the instru- 
mentalities of commerce or the commodities carried in 
such cars would have absolutely nothing to do with his 
injury, and, consequently, with his right of action. In 
other words, there would be no chain of causation between 
the injury and the instrumentalities, or the article being 
handled as commerce. 

On the other hand, if that same employe was injured 
while engaged in interstate commerce, that is, was injured 
by reason of some defect in the instrumentality of inter- 
state commerce, then it would be the character of the 
transportation or of the instrumentality that would con- 
tral his right of action. In other words, in so far as the 
right of action would be based upon defective appliance 
or equipment, this Act would operate in rem; in so far as 
it was based upon the negligence of individuals, who were 
his co-servants, it would operate on the person; and the 
nature of his contract of employment on the particular 
run when he was injured, would control. 

It was asserted by Mr. Brownell that the mere fact 
that a train had a commodity or article destined to an 
interstate point, would convert the entire train and the 
employes thereon into subjects of interstate commerce, 
and therefore amenable to this Act. I am not aware of 
the fact that the Supreme Court of the United States has 
gone that far. It seems like carrying the doctrine too 
far to say that all the employes and all the cars on a 
train running between two points wholly within the same 
State, are subject to the Act of Congress merely because 
there is a single package on that train destined to a 
point beyond the limits of that State, where there is no 



190 

connection between the subject-matter (that is, the pack- 
age itself) and the injury to the employe. There must 
be a line of demarcation at some point, and the courts 
must ultimately adopt some rule, by which we can deter- 
mine whether a person is engaged in interstate or intra- 
state commerce. I therefore suggest that we urge upon 
the courts the following propositions : 

1. That in case of injury to employes by defects 
in instrumentalities, the test should be the character 
of the instrumentalities of transportation, or the con- 
tents of particular instrumentalities; that is, as to 
whether the particular defective car causing the in- 
jury, crosses the State line. 

2. That in case of injury to an employe by the 
negligence of a co-servant, the test should be the na- 
ture of the contract of employment of the injured 
employe on each particular run ; that is, as to whether 
the employment of the injured employe is between 
points wholly within a State, or between two points 
in different States on the particular trip when the 
injury occurs. 

Chairman Stone: Your view is, then, that the em- 
ploye must be engaged in a service that will take him 
from one State to another before he can be treated as 
an interstate employe. 

Mr. "Wright : No, sir ; not necessarily. If he is in- 
jured on account of any defect in the instrumentality of 
commerce, then it is not necessary that he himself should 
go from one State to another, but only essential that the 
instrumentality should go from one State to another or 
be used in interstate commerce, because there is then a 
chain of causation between the injury and the defective 
instrumentalities of interstate commerce. But where the 
injury grows out of the negligence of a co-servant, there 



I 9 I 

is no chain of causation between the instrumentalities 
of commerce and the injury. 

Chairman Stone : Does not the Act say expressly that 
he must be an employe who is injured while he is em- 
ployed in interstate commerce and by a carrier while en- 
gaging in commerce between the States % 

Mr. Wright : He might be injured on a local line from 
Louisville to Bowling Green, on a defective car that is 
destined to some point beyond the State. Although he 
is employed locally in that case, he would be controlled, 
and his rights would be determined, by the Act of Con- 
gress. Of course, if the courts are going to treat railroad 
employes like they do seamen under the maritime law, 
that is, as wards of the nation, then they may hold that 
all employes are subject to the Act of Congress merely 
because they work on a train that carries a single inter- 
state package or a single car; but I do not believe our 
courts will go that far. If they do, then there is no such 
thing as intrastate commerce. 

Chairman Stone: Is there any distinction made as 
to what kind of an employe injures another one — whether 
he is engaged in interstate or intrastate commerce! 

Mr. Wright: The Act specifically provides that the 
injured employe be engaged in interstate commerce, but 
seems to make no distinction as to what character of 
service the co-servant causing the injury is performing 
at the time of the injury. 

Chairman Stone: A number of States, including 
Kentucky, give the right of action to the personal repre- 
sentative of a deceased employe who has been killed 
negligently by a carrier, for the benefit of the creditors 
of that employe, if he has any. In other words, the 



192 

recovery is distributed as part of his personal estate. 
He may have no father or mother or children or next 
of kin dependent on him. Now, wonld not an interstate 
employe's personal representative have a right of action 
under such a statute, although he would have none under 
this Act! 

Mr. Wright : If the facts controlling the commission 
of the wrongful act fall wholly within the Act of Con- 
gress, I think this is his sole and exclusive remedy, and 
that Congress, having the power to prescribe the right, 
also has the power to prescribe the manner in which the 
money growing out of that right shall be distributed. 

Chairman Stone: Understand that I am inclined to 
agree with you, but I put these questions in order to get 
your views. 

Mr. Wright: No, sir; I do not think he would have 
any right beyond this Act, provided the facts surrounding 
that wrongful act fall wholly within the terms of this Act. 

Chairman Stone : This is a very far-reaching branch 
of our discussion, and I would like to have just as much 
general discussion of this proposition as we can. 

Mr. Cary: When I first read the provisions of the 
Act I felt exactly as does the gentleman who has just 
expressed himself with regard to the jurisdiction being 
exclusive, and I am not so sure that I am ready to change 
my mind, but there are certain facts that have appealed 
to me as suggesting that there may be a right of election 
here on the part of the party who has been injured, not 
on the theory that he may elect as to whether he will 
be an interstate or intrastate employe, but on this propo- 
sition : You must not, as stated before, get away from the 
fact that this Act is a regulation of commerce, primarily. 



l 93 

Congress has no power to exercise the police power, ex- 
cept for that purpose. As Mr. Bobbins said this morn- 
ing, there apparently are no common law rules of liabil- 
ity recognized by the United States. They have, in fact, 
interpreted the common law, but there is no common law 
liability, as such, and this Act, for the first time, creates 
a substantive right in favor of one party against another, 
based on the proposition that there is a right of action. 
Now, are we going to say that that statute, passed 
for that particular purpose, was intended to destroy the 
substantive law of all the States, both from the stand- 
point of common law and from the standpoint of the 
statutes of the States, regulating relationships between 
members of society, creating rights of action in favor 
of one against another, not as a basis of the regulation 
of anything, but simply and solely for the purpose of 
giving one party a compensation for an injury that an- 
other party has caused? Is it not possible, therefore, 
to say that the object of the Federal legislation is so 
entirely different from the objects which are sought by 
the laws of the States relating to the same subject-matter, 
that the two can be looked at as entirely separate and 
distinct fields? Is not the employe, as a member of so- 
ciety, not because he is connected with any railroad com- 
pany or because he is an interstate or intrastate employe, 
but simply because he has been injured by some one, in 
a position where he may bring his action based upon his 
common law right, or perhaps as modified by some statu- 
tory provisions of his State, for the purpose of seeking 
a recovery, though acting in a position where as an inci- 
dent he does happen to be employed by a carrier in a 
business connected with interstate commerce? 



i 9 4 

That position appeals to me, and yet I am not sure 
that it is logical. The suggestion that it is not logical 
is that when, whatever the purpose may be, a law has 
been passed by Congress, creating certain rights between 
parties, these rights cover every possible situation, as 
between the parties, that may exist, and that therefore 
there is a complete exclusion of all rights created by the 
substantive laws of the States. If, however, that is fol- 
lowed up, it seems to me that this statute has practically 
destroyed, as to a very large part of the rights that ex- 
isted under the common law in the several States, the 
power of the State courts hereafter to take any action at 
all. Every case, of course, would be subject to removal, 
irrespective of diversity of citizenship, with the exception 
of the case in which the amount involved was under $2,000. 

Chairman Stone : Unless Congress vests the Federal 
courts with jurisdiction in cases under such amount. 

Mr. Stevens: I would like to hear Mr. Cary's views 
as to whether there is not a distinction in that respect 
between the statutory enactments of the State and the 
common law, governing liability. I can readily see how 
this statute might be exclusive of all such legislation on 
the subject of liability, while it might not be exclusive 
as to those rules of common law. Mr. Cary seemed to 
have started on that subject. Will he expound it further? 

Mr. Cary: Would not that depend entirely on the 
object of the State legislation? What difference does it 
make whether a cause of action exists under the com- 
mon law or whether it be created by statute if it is in- 
tended to create rights which are of the same character 
as those which existed at common law? 



i95 

Mr. Stevens: Let us see. Assume there is no such 
legislation, and the question whether this Act is inde- 
pendent of all common law rules arises. 

Mr. Cary: Why should it not apply as well to com- 
mon law rights as it would to statutory rights in the 
State! I can not see any distinction between the two, 
if you admit that the State statutes, whatever they may 
be, have created rights that are kindred to the commor. 
law rights or may be modifications of the common law 
rights. It depends on what phase the State statutes are 
addressed to. 

Mr. Dickinson: It seems to me that ii' this law is 
constitutional and operative, it must be exclusive. The 
whole rationale of the law is that it is a power exer- 
cised by Congress under the provision which authorized 
it to regulate interstate commerce, and the only theory 
upon which the giving of the right to recover damages 
can be sustained is that that is a proper method that 
Congress has chosen for regulating commerce. 

Now, then, if Congress, pursuing its constitutional 
powers, has legislated and has adopted a method which 
to Congress seems right for securing an object, then it 
seems to me, from the nature of things, that it is intended 
to be exclusive. 

Let me illustrate with an idea I have in mind. Sup- 
pose that instead of doing away with the fellow-servant 
doctrine, it had expressly recognized the fellow- servant 
doctrine and had said that it should be enforced on the 
theory that it would make it safer, in the carrying on of 
interstate commerce, to maintain that doctrine in all 
its vigor, and thus enforce upon the employes greater 
care or alertness in observing the character of people they 



196 

were employed with and making complaints to their em- 
ployers if they were negligent. Now, suppose Congress 
had legislated in that way and had thought that it was 
right and proper and wise, in carrying out this purpose, 
that the fellow-servant doctrine should be maintained. 
It is only for carrying out the purpose of Congress in the 
exercise of its constitutional power that it can be main- 
tained at all. 

Now, let us assume that some States have abolished 
the fellow-servant doctrine. Are you going to say that 
when Congress has established a law and a rule of action 
for making the carrying on of interstate commerce safer, 
the effectiveness of that law is going to end and the 
whole purpose of Congress be defeated by allowing the 
employe to choose the jurisdiction under which he will 
bring his action, and that he may bring his action under 
the State law and invoke the rule of damages provided 
for under the State law? 

The idea I had in mind as to the general proposition 
is: that if it is a constitutional exercise of power, and 
if this is a means that Congress, in its wisdom, has sanc- 
tioned for the exercise of that power, its effectiveness is 
not going to depend upon any State law or the choice 
of a forum by any employe, and it seems to me it would 
be exclusive, and that, where an employe had been injured 
in carrying on interstate commerce, under this Act he 
would be excluded from any other rule of damages than 
that which is here provided for. 

Mr. Cumming : It seems to me this remedy which is 
given under this Act must be exclusive of all others when 
we consider the question of a homicide and not simply 
that of an injury to an employe. If a man is simply 



197 

injured and he chooses to bring his action under the State 
statutes and State methods, and recovers under them, 
I think he would be estopped from turning around and 
bringing a new suit under the Federal statute. But sup- 
pose he had been killed? Under some of the State stat- 
utes, Georgia, for instance, the right of action is in the 
widow, and under this Federal statute it is in the repre- 
sentative. Now, if this remedy under the Federal statute 
is not exclusive, we are in this position : that, the widow 
in Georgia could bring her action and recover the value 
of the life, and then after that, there would be nothing 
to prevent the personal representative from bringing his 
action for recovery. Thus there would be two suits for 
damages, and such a thing as that would be abhorrent 
to all sense of right and equity, and it seems to me, 
when we look at it in that view, that it must necessarily 
follow that the Act of Congress is exclusive of the reme- 
dies provided by the States. 

Mr. Rosser: I take it for granted from the wording 
of this statute that in case of death the damage to be re- 
covered would be the damage naturally flowing from 
death, without any penalty being attached to it. If you 
follow the law of the Commonwealth of Georgia, you will 
find that when the widow sues she recovers the full meas- 
ure of her husband's life without any deduction for any 
expense he might have incurred in his own behalf had he 
lived. That is permitted, not on the theory that she 
has been damaged to that extent, but a penalty is added, 
to wit, the full measure of his life, without regard to 
what he would probably have spent had he lived. That 
law treats him as a money-making machine, not a spend- 
ing machine and gives to the widow the full value of that 



money-making machine. If you adopt the view that this 
Act is not exclusive, you will have confusion as to the 
measure of damages suggested — one rule when redress 
is sought in Federal or State courts under this Act, and 
a different rule in a State court seeking to enforce the 
State law. It would result in confusion unparalleled if 
the injured employe is permitted at his will to seek re- 
dress under this Act or the State law. To do so would 
not only weaken this Act, but would engender a con- 
fusion so great that not for a moment would Congress 
tolerate it. 

Mr. Harrison: Apply the Alabama law to this case. 
Alabama passed an original Act to prevent homicide, 
and the jury in Alabama was allowed, in a homicide case, 
to assess such damages as the jury deemed just, the pur- 
pose being to prevent homicide. But our Supreme Court 
held it to be penal in its nature. 

Mr. Smith: That applies to third persons. As to 
employes, the rule is compensatory, but as to strangers 
it is punitive. 

Mr. Rosser: As to the employe it is punitive? 

Mr. Smith: No. 

Mr. Rosser : But if the doctrine of puntive damages 
prevails in some States what are you going to do? We 
will still have the difficulty that I have suggested. 

Mr. Brownell: I think it is conceded that the em- 
ploye who is generally affected by the Act is not simply 
an interstate employe, and that the mere fact that he 
is engaged in interstate commerce does not constitute 
him an interstate employe. He may at the same time be 
an employe engaged in intrastate business. 



199 

Take, for instance, the case given here of a train 
that carries both interstate traffic and intrastate traffic. 
If it carried interstate traffic, I think the consensus of 
opinion is that the employe, being engaged in connection 
with some kind of interstate traffic, is subject to the regu- 
lations of Congress, but he is also engaged in connection 
with intrastate traffic. Now, let us assume that upon a 
certain day when the train is moving no interstate traffic 
an accident occurs. I suppose it would not be questioned 
that with respect to that accident the carrier would be 
subject to all the duties of an employer imposed by the 
laws of the State, and that the employe would be entitled 
to the right of action given by the laws of the State. 
The employe, himself, is none the less an employe engaged 
in intrastate commerce, although at the same time he 
may be subject to the congressional regulations as being 
engaged in the other. It seems to me that the question 
of the extent to which the operation of the laws of the 
State imposing duties and obligations and conferring 
rights is excluded involves, first, the question whether 
the employe, if engaged at the time of the accident in 
State commerce, may appeal to those rights, duties and 
benefits, and, second, the question, perhaps as important, 
whether by the effect of this Act, past, present or 
future laws of the State imposing duties and obligations, 
will affect the operation of this Act. 

This Act does not undertake to impose duties upon the 
comm'on carrier, with respect to interstate commerce. It 
nowhere says what kind of appliance and place for the 
performance of work shall be furnished ; it nowhere says 
what the duties of the officers, agents and employes shall 
be, but it simply provides that the carrier shall be liable 



200 

for negligence of the officers, agents or employes, or 
for the failure to provide sufficient appliances, etc., 
through its negligence, in each case the test being whether 
there has been negligence which, I take it, is a failure 
to perform a duty imposed by law, either the statutory 
law or the common law. 

It becomes necessary to determine the duty concerning 
which there has been a breach, and if Congress has not 
undertaken to state what that duty is, does it not follow 
that we must look to the law of the States, either the 
common law or the statute law! As it stands to-day, I 
suppose it is impossible to say just what the common 
law upon the subject of negligenc is r because it is so 
mixed and blended with statutory law that it is now more 
a matter of statute than original common law. 

I assume the duties of a carrier, so far as they can 
be imposed by State law, will change day by day and 
year by year, and I suggest the question whether it is 
entirely clear that the negligence which is made the sub- 
ject of action by this Act may not be the failure to per- 
form duties and obligations that are imposed by law, 
including not only laws of Congress, but also State laws. 

Does the provision that nothing in the Act shall impair 
the right given by any statute relate to statutes other 
than congressional statutes, because, not only in the pro- 
viso of the third section is it stated that contributory 
negligence shall not exist if the injury is contributed to 
by the violation of any statute, but also in the eighth sec- 
tion, there is this statement: — 

Chairman Stone: That also occurs in Section 4. 

Mr. Brownell : Yes ; and in Section 8, too. 



201 

Sec. 8. That nothing in this Act shall be held 
to limit the duty or liability of common carriers or 
to impair the rights of their employees under any 
other act or acts of Congress, or to affect the prosecu- 
tion of any pending proceeding or right of action, 

under a certain Act of Congress. 

As negligence or breach of duty is the basis of the 
right of action given by the Act, and the duty itself is 
not imposed anywhere in this Act or elsewhere by Con- 
gress, it will be claimed that existing and future State 
statutes may increase the duty or determine the negli- 
gence for which liability is imposed by this Act. 

An employe engaged in handling interstate commerce, 
and at the same time in handling intrastate commerce, 
is as much employed in the one as he is in the other, 
and a strong argument could be framed in support of the 
proposition that it would not at all interfere with the 
Tight of Congress to regulate interstate commerce if the 
employe should have preserved to him his right to appeal 
to the State court as an employe who was engaged in 
intrastate commerce at the time of the accident. My own 
view on that point is in accord with that expressed by 
Colonel Dickinson. But I think the question is impor- 
tant, and as very different views may be taken by differ- 
ent counsel, it is important that a correct conclusion be 
reached and strongly presented by the Committee, if one 
be appointed. 

Chairman Stone: The trouble about that is that 
the carriers would often rather the action should be 
"brought under the State statute than under this Act. 
Some of the State statutes are much more favorable to 
them than this Act is. 



202 

Mr. Brownell: If the employe has the choice as to 
whether he will bring his action under Federal statute or 
under State statute, that will not benefit the carrier. If 
we had a choice, that would be a different proposition. 

Chairman Stone: To illustrate: In Kentucky and 
Tennessee, and perhaps other States, the statute of limi- 
tations in an action of this kind limits the time for bring- 
ing suit to only one year. This Act gives the employe 
that is injured, or his personal representative where he 
is killed, two years' time in which to sue. 

Mr. Helm : I agree with Judge Dickinson and I agree 
also with Mr. Brownell, that the question ought to be 
thoroughly studied and threshed out, but my own judg- 
ment is that the Act must be held to be exclusive. Con- 
gress has altogether changed the relation between em- 
ployer and employe, and fixed new rights and remedies. 
It seems to me, therefore, that whenever the Act applies 
at all it must be held to be exclusive. Wherever it can 
be said that the employe at the time of the injury was 
engaged in interstate commerce, I do not believe it is logi- 
cal or sound to say that the injured person has his option 
as to whether he will appeal to the Act of Congress or 
the State legislation. 

As I understand it, the general rule is that where 
Congress, having domain over the subject — jurisdiction 
over the subject — and legislates on that general subject, 
that is presumed to be the complete legislation on that 
subject; and the failure to legislate on certain phases of 
the subject is to be taken as a declaration that there 
shall be no legislation on those phases. 

Mr. Dickinson: Just to sustain your view, may I 
say that it has recently been decided that the legislation 



203 

in Wisconsin, in regard to Hours of Labor of interstate 
employes, is invalid. It is within the domain of the Act 
of Congress on the same subject. 

Chairman Stone: The same thing has been held by 
the Supreme Court of Missouri recently. 

Mr. Helm: I therefore not only agree with Judge 
Dickinson that if Congress, instead of abolishing the fel- 
low-servant doctrine, had left it in full force and vigor, 
that a State law which undertook to abolish it, coming, 
as it would, in direct conflict with the Federal Act, would 
be wholly void, but I go further and say that in the case 
you mentioned the failure of the Act of Congress to give 
the right of action to the administrator for the benefit of 
creditors is a declaration by Congress that that right 
shall not be given. 

Mr. Dickinson : I entirely concur. What I gave was 
an illustration to show why it could not be done that way. 

Chairman Stone : In other words, that Congress has 
declared that there can be no right of action on behalf 
of the personal representative of an employe who has 
been killed, unless he has left one or more of these rela- 
tives that are named in this Act. 

Mr. Helm : That is what I mean. 

Chairman Stone: That the right to sue for death 
is statutory, anyway. 

Mr. Trabue: It seems to me that the position of 
Judge Dickinson is unanswerable. Both State and Fed- 
eral law can not operate upon the same case. If by any 
contingency they were exactly the same, this would be 
true, nevertheless, but where they are different, it is the 
more obvious. 

The Federal Government has exactly the same power, 
so far as extent goes, as the State has, when it is exer- 



204 

cising the power to regulate commerce, notwithstanding 
that the doctrine of respondeat superior was a doctrine 
of the State, or common law. That was declared in 
Gibbons v. Ogden, where the court asked what was this 
power to regulate commerce, and then declared that it 
was complete in itself; was the same power which the 
State would have regarding domestic commerce, or com- 
merce intrastate. 

Now, this being a field where it is evident, and seems 
to be conceded, that there can be but one paramount 
regulation, and therefore only one regulation, that must 
he the regulation of the Federal Government, as has been 
originally demonstrated. 

The question then is: can the plaintiff elect to set 
aside the Federal regulation 1 ? That is the proposition. 
Can the plaintiff elect that the Federal law shall not rule, 
hut that State law shall rule? 

Chairman Stone: Is that stating it correctly! Can 
he not elect to take his right of action under the State 
law and sue in the capacity of an intrastate employe! 

Mr. Trabue: That is the same proposition. 

Chairman Stone : Where he is engaged, I mean, in 
hoth kinds of commerce. 

Mr. Trabue: Mr. Bobbins has suggested, and very 
plausibly, that the employe is engaged in interstate com- 
merce, but at the same time he is engaged in intrastate 
commerce; he is engaged in both at the same instant, 
and is injurd in the operation of a train which is carry- 
ing both kinds of commerce. Now, as was determined 
yesterday I believe, so far as one power must govern in 
the operation of that train, it is Federal, and not State, 
power, because both can not control. 



205 

Can the employe elect? If all the provisions of the 
law were in favor of the employe, possibly he might elect • 
he might elect to forego a provision passed for his benefit. 
There is a number of cases in which a man may waive 
statutory provisions for his benefit. But that is not this 
case. This law gives rights to the employe, but it also 
gives rights to the railway company, and the employe 
can not elect to give away the rights of the railway com- 
pany, and such rights as are given by the Federal Act 
to the railway company can not be given away by the 
employe. 

If there were a State where the laws were nearly the 
same, except that the rights given by the Federal statute 
to the railways were not contained in the State law, but 
all the rights given to the employe by the Federal statute 
were contained in the State law, it might be to the in- 
terest of the employe to sue under the State law. But 
that he can not do, because he can not waive the rights 
given by the Act of Congress to the railway company. 

Chairman Stone : On that line, do you think there is 
anything in this statute for the benefit of railroad car- 
riers engaged in interstate commerce? 

Mr. Trabue : Yes ; there are several things. 

Chairman Stone : I would like to have you name such 
as you call to mind. 

Mr. Trabue: I do not know that I can. They are 
not very many. I remember that there is in the fifth 
section a provision that the railway shall have a set-off 
for any amount that it may have expended for the bene- 
fit of the employe. 

Chairman Stone : But that is at the expense of giving 
up the defense of contributory negligence? 



206 

Mr. Trabue : Certainly, but I mention it for illustra- 
tion, as a Federal statute might give the carrier rights, 
whether this did or not. 

Now, let us take the proposition of Mr. Brownell, as 
to the meaning of the word "negligence." 

Chairman Stone : While you are on that, I would like 
to know whether the negligence contemplated by this 
Act of Congress is to be measured by State laws and 
decisions of State courts or by those of the Federal courts. 

Mr. Trabue: I think unquestionably by the law of 
the Federal courts. 

Chairman Stone : That is, it is to be measured by the 
standard that has been erected by the Federal courts! 

Mr. Trabue : I think so. I think when a law is passed 
or constitution promulgated, that it speaks of things as 
they are understood at the time. If it were otherwise 
the States might fritter away this law; the States might 
make it more beneficial to one party or the other; the 
States might narrow it or broaden it at pleasure, and the 
Act of Congress would become in any particular State 
what the State desired it to become. The State can not 
change the meaning of an Act of Congress by undertaking 
to change the meaning of some of the words that are used 
in the Act of Congress. 

In a very interesting report of Commissioner Lane 
on the subject of valued bills of lading, he has undertaken 
to lay down what he regards as the law of each different 
condition which is likely to arise, and most of which I 
believe he does actually enumerate. 

Chairman Stone : You mean speaking for the Inter- 
state Commerce Commission. 

Mr. Trabue: I mean speaking for the Interstate 
Commerce Commission. 



2o; 

Chairman Stone: In what matter was that? 

Mr. Trabue : That is in the matter of released rights, 
made on May 14, 1908. In determining what is the law, 
regardless of the Hepburn Bill and State constitutions 
and statutes which forbid the limiting of liability, he has 
resorted principally to the decision of the Supreme Court 
and the Federal courts but also to the decisions of the 
State courts, to determine what was the common law 
on the subject. I think that is equally true regarding 
the meaning of the word "negligence" here. 

Mr. Galvin : If the State in which the Federal court 
is sitting has passed a legislative enactment denning a 
certain thing to be negligence, the Federal court has 
heretofore enforced that enactment, and will continue to 
do so. 

Mr. Trabue : That is true. But in the case of Baugh 
v. B. & 0., 149 U. S., you will remember that the United 
States Supreme Court held that the Federal courts would 
not follow the rulings of the State courts. 

Mr. Dickinson: That was on the question of fellow- 
servant. 

Mr. Trabue: That was on the question of fellow- 
servant. That is the law of negligence. They indicated 
that the law of negligence was one of the points on which 
the Federal courts would not follow the State courts ; and 
if the State passes a statute and changes that law, then 
the Federal courts will apply the statute of the State 
which has changed the common law of the State, although 
the Federal courts may have expounded the law differ- 
ently. When the Federal Government, having the right, 
passes a statute, that clinches the matter. 

Mr. Cary : They are adjudicating the rights of mem- 
bers of society. 



2o8 

Mr. Trabue: Applying the State law and the com- 
mon law of the State, as the Federal courts understand 
it. When Congress acts in a case where it has jurisdic- 
tion, then it necessarily sets aside the State statute as 
well as the State common law. 

Chairman Stone: But in this case Congress has not 
undertaken to define what constitutes "the negligence of 
any of the officers, agents, or employees," nor what con- 
stitutes "negligence in its cars, engines, appliances, ma- 
chinery, track, roadbed, works, boats, wharves, or other 
equipment,'' except so far as the Safety Appliance Acts, 
govern. 

Mr. Trabue: Congress can not permit the State to 
make the Federal law. The State might else make changes 
in Federal law by defining the terms used in the Federal 
law. Therefore, it seems to me that it is not in the 
power of the plaintiff, any more than it is in the power 
of the State, nor of the plaintiff with the assistance of 
the State, to set aside the paramount law which must 
govern in the case where it covers the situation, and there 
can be but one law. 

Mr. Waller: I am unable to subscribe to the views 
that have been expressed here on the exclusiveness of this 
Act, or the exclusive remedy of an injured party. Take, 
for instance, the case, in Tennessee, of a train dispatcher 
who is transmitting orders for a train which is engaged, 
we will say, wholly in interstate commerce. This train 
dispatcher gives an erroneous order for the conductor 
and engineer to proceed with the train from a certain 
station on to the next station. The order, I say, was an 
erroneous order, and should not have been given, because 
the train dispatcher had, at the same time, started another 



209 

train from the second station. The result is a collision 
and the engineer of the interstate train, we will say, 
has one of his legs cnt off. Under the laws of Tennessee, 
the engineer and the train dispatcher are not fellow- 
servants, but, working in separate departments of the 
railroad service, the engineer has a right of action against 
that railroad for the negligence of the train dispatcher. 
We will suppose that he institutes suit for $10,000 in the 
State court against the railroad company. He does not 
mention at all the Act of Congress that we have now 
under consideration, but he files simply a common law 
declaration alleging that this man has committed a wrong 
against him by giving him an erroneous order and that 
by complying with that order he has been injured. 

Of course,' prior to this statute there would have been 
no question but that that would be a good declaration 
under the law of Tennessee and that the engineer would 
have a right of action against the railroad company for 
the wrong that has been done him. 

Now the question arises : Has Congress taken from 
that engineer that right of action which he had under 
the laws of the State of Tennessee? If so, how are we 
going to determine it? The railway comes into court and 
says, "You can not maintain this action because of this 
Act of Congress. You were engaged in interstate com- 
merce and the train dispatcher was engaged in interstate 
commerce and you can only recover under Act of Con- 
gress." The engineer replies, "The State does not give 
me any right by virtue of an Act or statute regulating 
interstate commerce. It has not invaded the rights of 
Congress under the Federal Constitution to regulate in- 
terstate commerce. Our State has onlv done this : where 



2IO 

one citizen does another wrong and injury results from 
it, he has a right of action against that citizen under 
the laws of our State, and that is all I am demanding 
to do here in this court; that that damage be given me 
under the jurisdiction of the courts of the State of Ten- 
nessee. ' ' 

Now, can the railway say that because Congress has 
passed an Act under a constitutional provision regulating 
commerce, that engineer has been denied his right of 
action in a court of Tennessee, for the wrong that has 
been done him under the laws of Tennessee, those laws 
not undertaking to regulate in any way whatsoever com- 
merce between the States? 

Mr. Brewster: If Congress holds that this relation 
between master and servant is a matter of interstate 
commerce, have they not declared that the law of Ten- 
nessee is a regulation of interstate commerce? 

Mr. Waller : I am coming to that question. It seems 
to me this very proposition goes back to the Constitution 
itself, because Congress can not take away this man's 
right of action against another man, simply because they 
were engaged in interstate commerce, because his right 
of action is not based upon any statute of Tennessee regu- 
lating interstate commerce. 

If that can be done, then Congress can say that when- 
ever a train dispatcher engaged in giving orders regulat- 
ing interstate trains shall give an erroneous order by 
which an engineer handling that train loses his life or his 
limb there shall be no right of action under either State 
or Federal law. 

If it can do one, it can do the other; if it can destroy 
his right under the administration of State laws, it can 



211 

say lie shall have no right of action whatever. There- 
fore, I say, whatever may be said about the constitu- 
tionality of this Act, Congress has no right to say that 
this shall be an exclusive right, because in so doing it 
has destroyed this man's right which he had under the 
laws of Tennessee, independent of any law of Tennessee 
regulating, or attempting to regulate, interstate com- 
merce. Did Tennessee say, when she went into the Union, 
or admit, that her citizens, when one does another wrong- 
by which the second suffers an injury and thereby sues, 
would give up the right to enforce that remedy in the 
courts of Tennessee, simply because these parties were 
engaged in handling interstate traffic! 

I say if that can be done, if Congress can pass a law 
saying that the engineer who loses his life or his limb 
while handling an interstate train, through an erroneous 
order given by a train dispatcher, shall have no right of 
action in this State — 

Chairman Stone: That is, the Act provides that if 
he leaves a widow, or children, or parents, or relative 
dependent upon him, in case he is killed, a right of action 
is given to his personal representative. 

Mr. Waller: Yes; they have said it in that way, 
but I have put it where he has lost his leg, and then the 
question of a widow does not arise. I do not believe that 
Congress has any such power under the provision to regu- 
late interstate commerce. 

Mr. Stevens: To say what the gentleman has said 
might be said by Congress is simply to say that the 
Federal rule as to liability shall be the common law rule 
as to fellow-servants. In other words, Congress, as it 
has almost been conceded here, may enact a law whereby 



212 

those engaged in interstate commerce shall have no right 
of action against their employers for the negligence of 
their fellow-servants, and that is all that would be said 
in the case that has been supposed, and it must follow 
that if they have the right to extend the liability of the 
employer engaged in interstate commerce, they also have 
the right to limit it, and either exists. 

Mr. Hunton: Don't you believe Congress has a right 
to say that a man shall have no right of action? The 
inaction in the past has been equivalent to refusing a 
right of action. 

Mr. Stevens: That simply puts the question as to 
whether the regulation of the relation between master 
and servant is a regulation of interstate commerce. It is 
the big question we talked about yesterday. If they have 
that right, they also have the right to enact one such as 
you thought would be impossible of being sustained. Now, 
I say that in the case that was supposed, the defendant 
would, in his plea, or on the trial of the case, interpose 
the defense that the plaintiff in that action was engaged 
in interstate commerce at the time the injury was sus- 
tained, and that therefore his right was wholly depend- 
ent upon this Act of Congress which was exclusive in its 
nature, as has been urged, and on that plea the State 
court, so long as the action remained there, would deter- 
mine the question. we have been discussing, namely, the 
exclusiveness of the Federal statute, and also whether 
the defendant was engaged in interstate commerce at the 
time the injury was sustained. And so there would be 
an adjudication of that in the State court, and the case 
might be readily carried from the Supreme Court of 
the State to the Supreme Court of the United States in 
order to have the question determined there. 



213 

I think we are likely to be confronted with that situa- 
tion very soon. Cases are going to be brought in the 
State courts, without reference to this statute, and it 
is going to be up to us whether we are going to plead 
this statute in the manner required by the rules of 
the different States, and seek to have the action dismissed 
because of its not being based on the statute which would 
alone govern, or whether we are, in any given case of that 
kind, going to let the case proceed without raising that 
point. 

Something that the Chairman said makes me suggest 
another question which has not been mentioned here, but 
which has some connection with this matter which we are 
discussing now, and that is what is the measure of dam- 
age under this statute? I do not think it will be long 
before we will have that question before us in a way 
which has not been mentioned here. The Act gives a 
right of action, first, to the injured, and then to his per- 
sonal representative, for the benefit of his widow or 
children or other dependent relatives. Suppose the in- 
jured employe survives his injury for six months. In 
that time he institutes an action for damages. What is 
the rule of damage that will govern in that action? Sup- 
pose, again, that after it has been commenced he should 
die, and suppose, further, that under some State statute 
it is provided that actions for personal injuries shall 
survive. I can very readily conceive of a case where an 
employe may be so badly injured that the damages which 
would be recoverable for the pain and suffering he sus- 
tained during his survival would exceed any sum that 
might possibly be conceived of as being allowed by a 
jury in behalf of dependent relatives. In that sort of a 



2I 4 

case, the plaintiff's administrator would endeavor to 
maintain that action which the plaintiff, in his lifetime, 
began, and yon would then be confronted with a situation 
such as I have had occasion to deal with, relating to the 
rule of damage, and you would find a line of authorities 
which hold that where a right of action for personal 
injury is made to survive by statute, and where that 
statute does not set forth the measure of damage that may 
be recovered in such an action, the plaintiff, or his ad- 
ministrator, may recover, first, for the pain and suffer- 
ing which the deceased endured, because that could have 
been recovered by the deceased if he had lived, and, 
second, under a line of decisions, all that the deceased 
would have earned during the remainder of his lifetime 
but for the injury. There are authorities to that effect: 
that where the right of action for personal injuries is 
made to survive by statute, those two elements of damage 
may be recovered. In this case there is not anything said 
about the measure of damages. The word " pecuniary " 
is not found in the statute, as in most of the death Acts. 

We may well assume that the language is such as 
to limit the pecuniary damage to the widow or next of 
kin, but there are no words of that kind in this statute 
such as you will generally find in death Acts. 

I am a little off the question that is before the as- 
sembly, but I think you will find this a very interesting 
and practical question as to what is the measure of dam- 
age under this Act, either where the action is brought by 
the injured person during his survival or where it is 
brought by his administrator after his death. 

Chairman Stone: Can the measure exceed anything 
more than is compensatory under this Act? It says the 



215 

damages ' ' resulting. ' ' Do you think there could be puni- 
tive damages under this Act? 

Mr. Stevens : Not punitive damages. I will state that 
it has been held in some of the States that where an 
injured person dies as the result of his injury, his ad- 
ministrator may recover, first, for his pain and suffering, 
and, second, for all he might have earned during the 
remainder of his life. Now, the widow may say that is 
her loss. 

Chairman Stone: You may be sure that if there is 
a recovery it will be for enough. 

Mr. Hunton: With reference to the position that 
two rights of action would accrue to the employe, one 
in the State courts and one in the Federal courts, I con- 
fess I should like very much for somebody who has con- 
sidered that view of the subject to give to the Conference 
the result of his consideration as to that. It seems to me 
that is the logic of his position: one under the common 
law or the State statute and the other under the Federal 
statute. 

Chairman Stone : Do you not think that in any event 
where there is a recovery under either one, that can 
be pleaded in bar of a suit on the other remedy? 

Mr. Hunton: It is just that that I should like to 
have light upon. 

Mr. Dickinson: I am not rising to answer the ques- 
tion, because I think it is a very difficult one, but to make 
this suggestion: It certainly would, even in cases for 
less than $2,000, be best to raise the question of exclusive 
remedy, which, of course, could be done by writ of error, 
through the Supreme Court. If it should turn out that 
the remedy is an exclusive one and you paid the damage 
in the State court, it might be the subject of action in 



2l6 

the Federal court. The question should be raised in every 
case until it is decided. 

Mr. Cary: Is it not essential, if there be only one 
right of action, that hereafter, when a plaintiff draws a 
declaration or complaint, to hold that the declaration is 
insufficient unless he alleges that the carrier was engaged 
in interstate commerce or in intrastate commerce; that 
is, that the declaration ought to be demurred to, because 
if the right of action be exclusive it is very important 
to determine what kind of a carrier it is! If the car- 
rier be subject to the Federal Act, then the carrier must 
be engaged in interstate commerce at the time, and one 
rule of liability applies. If the carrier be intrastate in 
character and the employe be engaged in intrastate em- 
ployment, then another rule applies. 

So it appears to me that the declaration would be 
insufficient unless the plaintiff set out specifically whether 
the carrier was engaged in interstate commerce or in 
intrastate commerce. What I mean by making that state- 
ment is that it is essential to allege such facts as either 
bring it within the statute or show that it is not within the 
statute, because, certainly, in every case of a relation be- 
tween the carrier and employe now, we shall have a 
right under one jurisdiction or a right under another 
jurisdiction. 

Chairman Stone: Where it is apparent from the 
record that the defendant is an interstate carrier by rail- 
road, the petition or declaration of the plaintiff is de- 
fective unless it shows the statute, whether Federal or 
State, under which the suit is brought! 

Mr. Cary : Yes ; that is, interstate carrier by railroad 
or "carrier by railroad while engaging in commerce be- 
tween any of the several States." 



217 

I think the best thing is to remove it to the United 
State court if it appears that it is interstate. 

Mr. Galvin : Suppose it does not appear on the face 
of the declaration, could not a petition for removal be 
filed, nevertheless, setting up that the fact existed, coupled 
with an allegation of fraud on the part of the plaintiff 
in his declaration in that he had fraudulently concealed 
the fact known to him! In this way the petition for 
removal would show affirmatively that the plaintiff or 
injured person was engaged in interstate commerce, and 
that therefore the case is within the statute and re- 
movable. 

Mr. Cary: No right of removal exists with a single 
exhibition of fraud, unless it now appears on the face 
of the plaintiff's pleadings that a Federal question is 
involved. But your idea is that if the petition does not 
set it up, he is fraudulently concealing it. 

Mr. Warfield: You remember the committee having 
in charge the former Act did consider this question, and 
they said this on page 127 of their report : 

If, therefore, a plaintiff states a cause of action 
and it is one that does not arise under the Constitu- 
tion or laws of the United States, then the suit is 
not removable, even though the defendant shows by 
his petition for removal that there is something in 
the Constitution or laws of the United States which 
would prevent a recovery by the plaintiff. If, how- 
ever, the suit is one in which the plaintiff's right of 
action necessarily depends on the Constitution or 
laws of the United States, then the defendant can, 
in the petition for removal, make this appear and 
remove the cause. It seems to us that this is proved 
hy the case of Texas & Pacific Eailway v. Cody, 166 
U. S. 606, where the court said: 



2l8 

"By the acts of Congress of 1887 and 1888, the 
jurisdiction of the Circuit Court on removal by de- 
fendant (and defendants alone can remove) is lim- 
ited to such suits as might have been originally 
brought in that court ; and it is essential if the juris- 
diction is invoked on the ground that the cause of 
action arises under the Constitution, laws or treaties 
of the United States, that this should be asserted. 
If recovery directly depends upon a right claimed 
under the Constitution, laws or treaties, plaintiff's 
statement of his case must necessarily disclose the 
fact; and if the action is brought in the State court, 
defendant can remove it. If, however, plaintiff as- 
serts no such right, and defendant put his defense 
on the possession of such right or its denial to plain- 
tiff, though essential to his recovery, then defend- 
ant is remitted to his writ of error from this court 
to the State court to test the Federal questions thus 
raised. 

"It is obvious that in the instance of diverse citi- 
zenship a different question is presented. Plaintiff 
may run his own risk in respect of the cause of action 
on which he proceeds, but he cannot cut off defend- 
ant's constitutional right as a citizen of a different 
State than the plaintiff, to choose a Federal forum, 
by omitting to aver, or mistakenly, or falsely, stat- 
ing the citizenship of the parties. 

"And this must be so, also, as to Federal rail- 
road corporations. It was held in the Pacific Rail- 
road Removal cases that as all the faculties and ca- 
pacities possessed by such corporations were derived 
from their acts of incorporation by Congress, all 
their doings arose out of those laws, and, there- 
fore, suits by and against them were ' suits arising 
under the laws of the United States.' Conceding 
this, the principle applicable to diverse citizenship 
may reasonably be applied to them." 

We call attention to this sentence : 

"If, however, plaintiff asserts no such right (that 
is, under the Constitution, laws or treaties) and de- 
fendant put his defense on the possession of such 



219 

right, or its denial to plaintiff, though essential to 
his recovery, then defendant is remitted to his writ 
of error from this court to the State court to test 
the Federal questions thus raised." 

Mr. Keeble : In reference to the position that Judge 
Waller took just a minute ago, I must confess that I 
have not any very definite convictions on the subject, 
but I am inclined to sympathize with him in his position 
rather than with the other gentlemen in the position they 
have taken. I want to illustrate this question by some- 
thing that is in my mind. Under that Act, as I remember, 
the action must be brought by the administrator. Sup- 
pose that in Tennessee and our section of the country 
an employe engaged in operating a train between Colum- 
bia, Tenn., and Mt. Pleasant, Tenn., is injured and dies 
as a result of the injury. Under our statute, the wife 
may bring suit in her own name. Suppose that she does 
bring suit and declares upon the proposition that her 
husband was employed by the Louisville & Nashville Bail- 
road Company, engaged in intrastate commerce, to wit, 
working upon a train, as brakeman, between the town 
of Mt. Pleasant, Tenn., and the town of Columbia, in the 
State of Tennessee, and then sets out the actions of 
negligence and proceeds further with the declaration. 
Under our practice we might file a plea of not guilty, 
which, in a case of that kind, puts the plaintiff upon proof 
of every allegation in the declaration. Now, suppose at 
the trial of that case, after two years have expired, for 
we rarely ever try a case until more than two years after 
it is brought, it develops in the proof by her efforts that 
there was a car in that train that contained a shipment 
destined from Mt. Pleasant, Tenn., to Louisville, Ky. 



220 

According to the argument made by many gentlemen here 
to-day, that train would then have been engaged in inter- 
state commerce and that employe, having been engaged 
in the operation of that train, was an interstate employe 
and entitled to the provisions of this Act. But under 
the argument made by other gentlemen, that Act was 
exclusive, and consequently when that fact is brought 
before the court it develops that the widow has no right 
of action whatever against the carrier, by reason of the 
fact that her husband, having been engaged in inter- 
state commerce, operating a train that was carrying 
interstate traffic, all the remedies that were given under 
the law of the State of Tennessee, both common and 
statute, had passed, under this Federal Act, to the admin- 
istrator. 

'Ihere you are, face to face with that proposition. Do 
you mean to say that our court would hold, simply be- 
cause, as a most remote incident of interstate commerce 
this Act had been passed, that that destroyed the right 
of action of this widow, which she had theretofore had 
under the common or statute law of the State of Ten- 
nessee? There is the question sharply drawn. 

Mr. Trabue: Would both have a right of action? 
Would the widow have a right of action under the State 
law and the administrator have a right of action under 
the Federal law, and two recoveries result? 

Mr. Keeble: I do not know. That is a question I 
am asking now, and that is why I can not agree to the 
proposition that seems to be so confidently asserted by 
gentlemen here that this remedy is exclusive. If that 
was so, a right shifty trial lawyer could nearly always 
make it appear in a case, sooner or later, that there was 



221 

something that was carried to a point beyond the State 
on board that train. 

Mr. Dickinson: We are considering bona fide cases. 

Mr. Keeble: If yon examine the shipments on any 
train carefully enough, you will find some shipment that 
is destined to a point beyond the State. I doubt if there 
is a train of cars run that does not carry some shipment 
that is interstate commerce. 

Mr. Brownell: I thought the plaintiff might have 
difficulty in finding it out by the time he files his de- 
claration. 

Mr. Keeble : Yes ; that may be. Now, I say I do not 
believe that it is at all free from doubt. I do not believe 
it is true to say that the Federal Government has got a 
right to make such a rule as that, that will be so diffi- 
cult of application in matters where a person is really 
largely, if not almost altogether, engaged in intrastate 
traffic, over which the Supreme Court of the United States 
has, time and time again, said that the State had juris- 
diction and the State legislature had the right to con- 
trol it. 

Chairman Stone : In the case you present, would not 
your idea about that strengthen the view Mr. Helm ex- 
pressed this morning, namely, that the test as to whether 
an employe was an employe engaged in interstate com- 
merce, was the extent of his service! If the employment 
he rendered was rendered between points in the same 
State, that would make him an intrastate employe and 
he would not be governed by the traffic on the train he 
worked on. 

Mr. Keeble: I think if we look at it independent of 
the decision and independent of everything except what 



222 

would be fair and right, it would strike us that that would 
be right, but I strongly doubt whether it would be, if 
you would consider the announcement of the courts on 
the subject of when a man is engaged in interstate com- 
merce. 

And there is a point I wish to speak on just for a 
moment. When you speak on the question of going on 
to the fundamental proposition of this Act, there is a 
clean-cut illustration of the result of an Act of Con- 
gress that, under the guise of a regulation of interstate 
commerce, strikes down the substantive right of individ- 
uals between themselves in a State. And it is not rea- 
sonable to suppose that, instead of showing the courts 
how they can construe this Act so as to fit all conditions, 
if we present these difficulties to the court, to show the 
court that the expression of the court in the Howard 
case is going to lead to interminable confusion, we may 
succeed in having the Howard case overruled in that 
respect. 

With this final suggestion, I take my seat. While 
it is true that the courts have time and again held that 
the State might do a certain thing until Congress had 
acted, in regard to the regulation of commerce, and when 
Congress did act within that same sphere, that that su- 
perseded the action of the State legislatures, yet I can 
not call to mind at present any single case of that char- 
acter, where the matter in hand undertook to regulate 
the fundamental relations between people. It has always 
been more or less in the nature of a police regulation and 
the infliction of a penalty for the failure to observe some 
regulation which strictly and technically belongs to the 
police power. 



223 

I suggest that there is a broad difference between 
the right of Congress to prescribe a police regulation 
which merely lays down a rule of conduct and punishes 
for the failure to observe and where the rights of the 
parties are concerned. 

Mr. Dickinson : I have been very much interested in 
the discussion, and especially in the line of argument 
taken by Judge Waller and Mr. Keeble, but it seems to 
me that it is quite apart from the question we have under 
discussion. If there is anything in those arguments, and 
there is quite a great deal of force in what they have 
said, it does not go to the interpretation of this Act. 
The question is now upon the constitutional power of 
Congress to pass the Law. It is aimed at the Law itself 
and not the interpretation of the Law. It may be that 
some gentlemen have forgotton, but if they will look 
over the argument in the Howard case, they will find that 
this was urged with great earnestness, and that those 
arguments were made in that case and were presented 
to the Supreme Court. If the Law is to be attacked, they 
ought to be made again. 

But that is a different thing from what the Law 
means. Assuming that it shall be held that it is consti- 
tutional, and that the court shall hold that in regulating 
interstate commerce Congress has power to give a right 
of action, then you have got beyond the question of the 
constitutionality of the Law. If Congress has a right to 
say that this is a proper method of effectuating that con- 
stitutional power, we must come to the' interpretation of 
the Act and learn whether or not the remedy is exclusive. 

It was argued in the Howard case that the rule of 
damages was changed. In that case, which arose in Ten- 
nessee, it was stated that in Tennessee there was a right 



224 

to recover punitive damages and for mental and physical 
suffering, all of which was excluded under the Employ- 
ers ' Liability Act, and that a citizen of Tennessee was. 
given a less measure of damages than under the law of 
the State. But the court never passed on this question, 
and it is still open to be heard, if the constitutionality of 
the Act is to be attacked. 

Mr. Keeble : I want to say a word in answer to Judge 
Dickinson's statement that the remarks that I made were 
not applicable. All I understand the court has said is 
that it is competent for Congress to pass a law regu- 
lating the relation between master and servant in such 
a sphere as shall not interfere with the prerogatives of 
the State. They did not define what these prerogatives 
were, and we come now to interpret the Act and find out 
to what extent they are unconstitutional. Now, the ques- 
tion arises as to whether this is an exclusive remedy. As 
to whether the court will hold this to be an exclusive rem- 
edy will necessarily bring up the discussion of all these 
questions of the rights of the States in regard to what 
has been stated ; and so I suggest that on that point alone 
this argument touches the question we have on hand. Li 
other words, although Congress could say, in certain un- 
defined cases, that the court has not undertaken to set 
out, that there is power in Congress to make a liability 
of this character, yet as to the power of Congress to say 
that this shall be an exclusive remedy where a man is 
engaged in both interstate and intrastate commerce, I do 
not understand that there is any expression. 

Chairman Stone : I would like to have your view, on 
the assumption that this Act is constitutional, whether it 
will be held to be constitutional as to its exclusiveness. 



225 

Mr. Keeble : I feel hopeless in regard to that, but it 
seems to me that is a question that we can not find out 
until we come right up to the court and ask it. For my- 
self, I do not see how in the light of the well-recognized 
division between sovereignties, Congress can say that it 
will only give this one right for an injury that has here- 
tofore, for centuries, been regarded as a matter for do- 
mestic concern, and deprive the State of giving other or 
different rights, as the case might be. For I can not un- 
derstand how it makes any difference, in the handling of 
interstate commerce, in the rights of citizens of one State 
in reference to the conduct of the citizens of another 
State, whether the injured man gets the money, or his 
administrator. 

Chairman Stone: Wouldn't your argument lead to 
two recoveries against the carrier? 

Mr. Keeble : I do not believe that after the satisfac- 
tion of the injury in one case, there could be another re- 
covery. I believe there should be complete satisfaction 
and full judgment, on the general proposition that satis- 
faction was obtained, unless it came to a controversy be- 
tween the administrator and the widow, and then I do not 
know how it would go. 

Mr. Brownell : If we are to look at this Act alone for 
a definition of the term ''measure of damages," it seems 
to me a question arises under this Act that did not arise 
under the former Act, because of a change in the phrase- 
ology, and one that I would like to suggest for considera- 
tion. 

In the former Act, it was provided that the carrier 
should be liable to the injured party, or to his personal 
representative for the benefit of his widow and next of 



226 

kin, for all damages resulting from such injury or death, 
making it not only liable for damages, but for all dam- 
ages resulting from injury or death. 

The committee, in considering the former Act, were 
in doubt whether it prescribed, as the measure of dam- 
ages, all damages resulting to the injured employe for 
the injuries, and in case of death only such damages as 
resulted to next of kin, or whether in case of death the 
personal representative would be entitled to recover both 
classes of damages, namely, all damages resulting to the 
injured employe and all resulting to the next of kin, com- 
bined, under the line of authorities referred to by Mr. 
Stevens. 

But under the present Act, I think the provision is not 
as suggested in your question to Mr. Stevens, which im- 
plied that the person suing would be entitled to damages 
resulting from injury or death. The only provision here 
with respect to damages is that the carrier shall be liable 
in damages. There is no provision for the measure of 
damages. I suggest for consideration whether, if we are 
confined to this Act for the measure of damages, particu- 
larly in case of death, there is any measure which is capa- 
ble of determination by the court, and enforcement by 
the court. 

Mr. Brewster : I would state that there is an identical 
case decided by the Supreme Court of Georgia before 
there was any measure of damages fixed by the Legisla- 
ture for a homicide. In the case of Johnson v. Macon & 
Western Railroad, the Supreme Court fixed the rule of 
damage to be, that the widow was entitled to recover what 
the proof showed she would likely have received from the 
husband, deducting his expenses of living from the wages 



227 

he would have gotten. They started on that line and 
adopted that rule. Afterwards it was changed and the 
measure of damages was fixed by statute to be the entire 
value of the dead man's life, without deducting anything. 

Mr. Warfield : In Kentucky, we have a constitutional 
provision which forbids the Legislature from ever fixing 
a limit. Our statute does not fix any measure of dam- 
ages, but the court has held that the measure of damages 
is the value to his estate of the life that has been de- 
stroyed. 

Mr. Kosser: Deducting the expenses of the man's 
living ? 

Mr. Warfield : The jury may deduct it, but it is im- 
proper to instruct them that they may. 

Mr. Helm : It seems to me that the right of Congress 
to regulate the relation between master and servant gives 
Congress plenary power over the subject, and if we admit 
that Congress has plenary power over the subject, we 
must admit that it can make any regulation it sees fit, 
being a question of power ; and if the regulation is against 
the employer, it does not affect the right of Congress to 
make it. It may make regulations either way. It is 
simply a question of power. So long as we concede the 
power, it seems to me we can not criticise the exercise 
of that power by saying, "This is in favor of the em- 
ploye, and this is not." 

Now, let us see what the result would be if what Mr. 
"Waller and Mr. Keeble say should be true. If an employe 
is injured while engaged in interstate commerce and the 
administrator has a clear right under the Federal statute 
to bring suit for breach of duty by the railroad company, 
then the widow may bring a suit for precisely the same 



228 

breach of duty. In our State the administrator has to 
bring the suit, but the widow is given the right in Ten- 
nessee. It is not believable that in any civilized juris- 
diction, the administrator is going to be allowed to re- 
cover, under the Federal jurisdiction, the full amount for 
this breach of duty by the railroad company, and also 
that the widow is going to be allowed to recover the full 
damages for that same breach of duty. 

Chairman Stone: I want to call your attention to 
what I have noticed as another step to protect the rights 
of women, in this last Act. -It says "in case of the death 
of such employee, to his or her personal representative, 
for the benefit of the surviving widow or husband.' ' So 
that female employes engaged in interstate commerce are 
protected by this Act, which is not true of the old Act. 
We must not talk altogether about the poor widow, 
but also about the poor husband, who will have a voice in 
this matter. 

Mr. Dickinson : I wish now to make a motion, which 
can be acted on later (I shall have to leave, myself, and 
I know some of the others will have to leave), and that 
is that the Chair appoint a committee of twelve lawyers, 
I would suggest from different parts of the country, to 
take under consideration the various questions that have 
been raised, and to make a printed report, and that the 
Chairman of this meeting be, ex officio, a member of that 
committee, and the chairman of it. 

Chairman Stone : I am a little prejudiced against the 
number thirteen. I don't know whether it will come out 
all right. 

Mr. Dickinson : Make it fourteen. 



229 

Chairman Stone: Make it eleven, or twelve, includ- 
ing the chairman. 

Mr. Dickinson: We will make it eleven, or twelve 
with the chairman included. I wish to add to the motion : 
That the various railroad companies that are represented 
will upon presentation by the Chairman of an expense 
bill for printing pay the expense of it, equally; that is, 
by dividing it up among the railroads represented. There 
is no other proper basis. It is a small matter, anyway. 

Mr. Warfield : We had some little talk in New York 
as to whether it would be advisable to have the transcript 
of all the discussion of this meeting printed — whether that 
would be sufficiently helpful to the committee and justify 
the expense of printing. 

Mr. Dickinson : That has nothing to do with this mo- 
tion. 

The motion, upon being put, was unanimously agreed 
to. 

Mr. Helm : I am sorry to hear that Judge Dickinson 
must leave us. Before he goes I would very much like 
to hear what he would have to say, as he was one of the 
lawyers in the Howard case, upon the first and second 
propositions involved in these questions, and also what* 
he thinks upon the question of classification. I would 
like to know whether he thinks that those claimed rights 
are foreclosed by the Howard case, or that the Act is void 
because of improper classification. 

Chairman Stone: It embraces all employes regard- 
less of whether they are in hazardous employment by the 
railroad carrier, or not! 

Mr. Dickinson : Yes. I am not prepared to go into a 
discussion of that question. I understand Judge Hum- 
phrey went into it fully. 



23o 

Mr. Helm: He went into a discussion of the first 
proposition with a reasonable degree of fullness ; hut not 
into the second proposition. 

Mr. Dickinson: Beally, I have not looked over that 
decision, or the argument, lately, but I will say among 
ourselves that my impression is that unless there is a 
change in the court there will be no question about sus- 
taining the constitutionality of this Act on its broad prin- 
ciples. There might be some features that might be ex- 
cluded, which I have not in my mind, but I think, from 
the way the court lined itself up in those several opinions, 
that they are going to hold that Congress has a right 
to regulate interstate commerce by giving damages to 
employes. 

Mr. Helm: Do you think, also, they have the right 
to refuse to classify the various railway employes ac- 
cording to their occupation, so as to put in the same class 
men engaged in extra-hazardous service with those whose 
occupation is not hazardous at all? 

Mr. Dickinson: I have not given that consideration 
enough to express any views. 

Chairman Stone: I didn't catch that suggestion, as 
'to the first and second questions in our list of questions : 
whether you thought the Howard case precluded any 
question as to the constitutionality of this Act, on the 
ground that it regulated the relation between master and 
servant. Do you think there is such accord on that point 
that it will not be worth while to raise that question 
again? 

Mr. Dickinson: I do not see that it would be worth 
while to raise the question and I am making no effort in 
that direction. I said, among ourselves, that I was afraid 



2 3* 

it would be that way. I believed then they had no right 
to take away from a citizen the measure of damages given 
by a State. I argued that question, and I argued it with 
a great deal of earnestness, and I believe in the strength 
of the proposition. But the court did not take much stock 
in it. 

I wish to say that I would not leave this meeting ex- 
cept for the fact that I have to attend, to-morrow, at New 
York, a meeting of a committee of the American Bar 
Association that is preparing a Code of Legal Ethics, in 
which you gentlemen are all interested. The members of 
that committee come from various parts of the country, 
and, being a member of that committee and having prom- 
ised to go, I believe it is my duty to go. Otherwise I 
would not leave. 

Mr. Helm: Judge Humphrey thought, referring to 
the question of the right of Congress to regulate the rela- 
tions between master and servant, that the question is 
foreclosed by the Howard case, and that it would not be 
good policy to try to open the question. Do you agree 
with that? 

Mr. Dickinson : I don't see how you are going to gain 
anything if you give up all contentions. You are no 
worse off if you fight for all. I go on the principle of 
the old fellow down in Summer County, Tennessee. He 
said he made it a rule that every time he saw a woman 
to ask her to kiss him. He said they didn't all kiss him, 
but many kissed him that wouldn't have kissed him if he 
had not asked. 

Chairman Stone: As to this committee, I want to 
take a little time in making the selections, so as to locate 
them in different sections of the country and have them 



232 

represent different lines of railroads, as far as the num- 
ber of members will permit, that is eleven, who, with my- 
self, will make the twelve members of the committee indi- 
cated. 

I am rather inclined (and unless there is some sug- 
gestion that will outweigh that inclination I will do so) 
to appoint the members who composed the former com- 
mittee, as part of this new committee, because they have 
had experience in that line, and I think perhaps it would 
be well to have them act in the same capacity again. 

I would like to make another inquiry of Judge Dick- 
inson, and that is whether it is contemplated that this 
committee shall make a report upon any other Act of 
Congress affecting the railroad companies, than the new 
Employers' Liability Act. There are some other acts 
that were mentioned in the call for this Conference, that 
are yet to be discussed, and that are very important, and 
I would like to be informed upon the point as to whether 
we shall have embodied in that report anything beyond 
the scope of the Employers ' Liability Act. 

Mr. Dickinson : My idea was to confine it to that Act. 
It would be an immense labor, and if you are going to 
consider any other acts of Congress, you had better ap- 
point another committee. 

Mr. Harrison: In listening to this discussion and 
reaching the conclusion that the railroad companies of 
the country are about to have to assume an additional 
expense and liability under this Act, I hurriedly prepared 
a question that occurred to my mind, which I would like 
very much (as it refers to this law which has been re- 
ferred to this committee) to have also referred to that 
committee, in connection with that law, if that law be 



233 

deemed constitutional or if we put it into effect, and that 
is this: If the liability be placed by this Act upon rail- 
road, companies engaged in interstate commerce, would 
such companies be authorized to protect themselves by 
insuring their liabilities and treat the cost of such insur- 
ace as a part of its operating expenses! 

You know, Mr. Chairman, as you are familiar with 
some cases, and other lawyers here are, that we may soon 
~be called upon to take proof in certain rate cases, and it 
does look to me as if Congress has wrongfully put this 
additional liability upon the railroads of this country. If 
they have got to pay for all the injuries and deaths of em- 
ployes, it will be a fixed charge upon the railroad com- 
panies that they ought at least to be enabled to maintain 
such cost of insurance as part of their fixed charges, and 
it ought, in making up their estimates of what they are 
earning, to go in as a fixed charge of the company. 

Chairman Stone: You mean the premium paid for 
insurance. 

Mr. Harrison: Yes; I mean the premium paid for 
insurance. I think if it is going to be a fixed charge that 
they have got to meet, it ought to be allowed, so that 
investors may see it when they wish to know what is going 
to be the income on their investments. I think it is of 
such importance that. I would like to have that question 
referred to that committee. 

Chairman Stone: If there is no objection, it will be 
referred to the committee. 

Adjourned until to-morrow, Wednesday, July 15, 1908, 
at 10 o'clock a. m. 



234 



THIRD DAY'S SESSION. 



July 15, 1908—10 a. m. 
The Conference was called to order by the Chairman. 
Chairman Stone : When adjournment took place yes- 
terday afternoon, we had under discussion Question 18. 

18. Is this Act exclusive as to rights of action 
within its terms, and does it displace rights of action 
under the common law or under State statutes in all 
cases embraced within its terms, and is there any- 
thing in Section 8 of the Act which determines one 
way or the other this inquiry! 

While we have had a good deal of discussion of that 
question, I did not understand that we had finished with 
it, and it is open this morning for any further discussion 
by the members of the Conference. 

Mr. Warfield : I want to make this suggestion in that 
connection : If the Act is going to be held to be constitu- 
tional, then I think it is obvious that it is to the interest 
of the carriers that cases arising under the Act shall be 
tried in the Federal courts, rather than in the State 
courts, not only because of the manner of instructing the 
juries by Federal judges, in contrast with the manner of 
instructing juries by State judges, but also by reason of 
the fact — 

Chairman Stone : You mean that the Federal judge 
has the last speech to the jury. 

Mr. Warfield : The Federal judge has the last speech 
— but also by reason of the fact that the juries in the 
Federal courts are drawn from a wider area and are 



235 

likely not to be affected by local prejudices, as they are 
when drawn in the home county of the plaintiff. 

I am therefore very strongly impressed with the idea, 
not only that there ought to be harmony of action on the 
part of all the railroads, but that there ought to be a 
most vigorous effort made, if the Act is held to be consti- 
tutional, to maintain the position (a position which I be- 
lieve the Federal judges will lend strong aid and comfort 
to, because I think they will prefer to administer the stat- 
ute rather than permit the State courts to do so) that this 
Act is exclusive and that actions thereunder can be main- 
tained only in the Federal courts. 

Mr. Gralvin : I have been thinking along the lines sug- 
gested by Mr. Warfield, and it seems to me that this ques- 
tion, assuming, as it does, that the Act is constitutional, 
is the most important question that we have considered, 
or that we can consider with reference to this Act. As 
Mr. Warfield has just stated, there is a vast difference in 
most of the States between the trial of cases in the State 
courts and the trial of cases in the United States courts. 
Not only is there the difficulty which he has suggested 
about the juries from the vicinage, the neighborhood of 
the plaintiff, friends, and neighbors, but the real difficulty 
that we, who try these railroad cases, have to meet, is not 
so much the fact that the parties are from the neighbor- 
hood and that the lawyer who brings these cases, and 
who tries them for the plaintiff, is from the vicinage, but 
very frequently the lawyer who brings these cases runs 
the court. He is a little political boss in his neighborhood, 
and almost invariably that same fellow has a greater fear 
and dread of the United States court than any other thing 
that you can present to him; and when you talk to him 



236 

about taking his case to the United States court, there is 
nothing that he will not resort to to prevent that being 
done. 

We are experiencing that every day now in actions 
Drought against railroad companies in the State courts, 
in which there is exactly the same liability upon the part 
of the railroad company, the same rule of law applying, 
as to liability, in the Federal court that applies in the 
State court, so that apparently there would be no ad- 
vantage, so far as the administration of the law is con- 
cerned, as distinguished from a case where the United 
States court recognizes the fellow-servant doctrine and 
the State court would say that the same men, the one who 
was injured and the one who caused the injury, are not 
fellow-servants. So that while, I say, a good reason may 
exist for a lawyer to keep the kind of case last mentioned 
in the State court, yet he will try just as vigorously to 
prevent the removal of the other case to the United States 
court, where exactly the same rule of law applies. 

There are several reasons for that. One reason is 
that this lawyer (and we deal rather with the lawyer who 
brings those cases than with the parties) is afraid of the 
United States judge and the United States court. 

Another important thing in that connection is that 
witnesses have a greater respect and fear of the United 
States courts and the United States judges than they have 
of their State courts and State judges. 
. So it seems to me there can be no question, aside from 
the fact that the Federal judge is really a judge, that 
from every aspect, you get a better chance and a fairer 
trial in the United States court. The witnesses and the 
parties, having a respect for, and fear of, the court and 



237 

judge, are less prone to shade matters and tell a little 
different story, to take them to the jury. Then, of course, 
there is the fact, too, that the United States judge talks 
to the jury a little bit about the evidence; there has to 
be a case made out. 

In the State of Kentucky, we have a law that allows 
nine jurors of the twelve to make a verdict, whereas it 
takes the twelve in the United States court; and I am 
a believer, from experience, in the old saying about eleven 
stubborn jurors that stand out against one. We find, in 
Kentucky, that verdicts are frequently made by nine men 
in a very large sum, whereas in the United States court 
one, two or three of the conservative men of the jury, if 
they can not prevent the verdict, will at least cause it to 
be made more reasonable. 

So, from every point of view, this question is of the 
utmost importance. It seems to be conceded, as to the 
question of the right to deal with the relation of master 
and servant, that the Supreme Court has probably pre- 
cluded itself from the consideration of the constitution- 
ality of the Act in that regard, and that we are left largely, 
as to the constitutionality of this Act, to the Fifth Amend- 
ment and the Fourteenth Amendment on the question of 
whether there is a proper classification. And may I be 
pardoned for referring, in passing, to a suggestion made 
by the Chairman yesterday, which seems to me to be very 
important in the consideration of the question of proper 
classification, and that is, this law provides, as the Chair- 
man pointed out yesterday, not only is it for the benefit 
of men, but for the benefit of women, and I suppose the 
courts will take judicial notice of the fact that women are 
not employed in the hazardous work in operating rail- 



2 3 8 

roads. So if Congress intended to limit it to those en- 
gaged in hazardous employment, they did not have to pro- 
vide for women. That is just a suggestion in passing. 

Chairman Stone: They would be more apt to hold 
the Act unconstitutional on that account than to construe 
it so as to apply it alone to those engaged in hazardous 
employment. 

Mr. Galvin : Certainly. And if we are to attack the 
constitutionality of the Act on that ground, as well as 
others, in presenting it our contention must be that it 
was intended to apply to every one and was not intended 
to be limited to those engaged in hazardous employment, 
because our position being that it was intended for every- 
body, they must either say that is proper classification, or 
if they say it is not proper classification, then they must 
say the Act is unconstitutional because not limited to 
those engaged in hazardous employment. 

"What I had in mind was, assuming that the Act is con- 
stitutional, the necessity, if possible, of outlining some 
plan for general counsel in advising local attorneys how 
to meet these cases as they are brought in their courts 
from day to day, as to procedure in handling the cases. 
To that end it seems to me the first step, wherever possi- 
ble, would be to direct the removal of the cases to the 
United States court. 

Mr. Cary was asked yesterday, when he was on his 
feet, with reference to pleading. If the petition or decla- 
ration of the plaintiff sets forth facts showing that the 
plaintiff comes within the definition of the statute as one 
engaged in interstate commerce, then upon the face of the 
petition it can be removed to the United States court, and 
that should be the first step taken. 



239 

Chairman Stone: If the amount is sufficient. 

Mr. Galvin : If the amount is sufficient ; certainly. I 
do not know whether or not it can be carried out, but 
then, it seems to me, if it is clearly shown that the plain- 
tiff was engaged in interstate commerce and that the 
plaintiff or his counsel knew, or ought to have known, 
that fact, and they drew a declaration in such a way as 
to conceal that fact, that a removal might still be had to 
the United States court, upon a showing in the petition 
for removal that the plaintiff omitted to make that allega- 
tion, or that the plaintiff and his counsel omitted to make 
that showing in his petition or declaration with the fraud- 
ulent purpose of attempting to defeat the removal of the 
case from the State court to the United States court ; just 
as we do now in many instances where the plaintiff joins 
with the non-resident corporation defendant in a State 
court, some resident employe, like an engineer or con- 
ductor. In many cases of that kind, it is the practice (it 
is mine at least and that of many other counsel) to charge, 
where there is ground for it at any rate, that the joinder 
of such resident defendant was made with the fraudulent 
purpose and intent to defeat the removal. You can make 
some sort of an allegation in this kind of a case and take 
it into the United States court to have the United States 
court pass upon the fact as to whether there was a fraudu- 
lent joinder. 

Now, if I might make that suggestion, I would. It is 
to my mind a very important point that the local attor- 
neys should be instructed that they should seek, in every 
one of these cases brought after the passage of this Act, 
to, as far as possible, remove them to the United States 
court and get them there, for many reasons. 



240 

Mr. Harrison: With the gentleman's permission, I 
would like to ask a question before he leaves that sub- 
ject. What would you do if you were representing a for- 
eign corporation in Alabama, which has a statute pro- 
viding for the forfeiture of its right to do business in 
that State if it removes any case to the Federal court? 

Mr. Galvin : I would remove the case, if the defend- 
ant is a corporation engaged in interstate commerce. We 
have such a law in Kentucky. Indeed, I represent a rail- 
road that passes through the State of Kentucky, built by 
the city of Cincinnati. In the Act which the Legislature 
of Kentucky passed to enable the trustees of Cincinnati 
to construct that road through the State of Kentucky, it 
was expressly provided that if the trustees, or any lessee 
*to whom they might let that railroad for the purpose of 
being operated, removed a cause brought by a citizen of 
Kentucky against the trustees, or the lessee, from a State 
court into the United States court, that thereby all the 
rights granted it to operate through the State of Ken- 
tucky should be forfeited; and yet every day and every 
week we remove cases to the United States court, and the 
United States Supreme Court has held repeatedly that 
that sort of a State statute is void. 

The other suggestion I was going to make is this : It 
was stated yesterday that this Act was exclusive and 
there was quite a vigorous argument made against it. 
Judge Waller and Mr. Keeble made strong arguments 
against that idea. Judge Waller made the suggestion 
that if Congress had the right to take away the cause of 
action of an engineer injured under conditions which he 
illustrated, it would be a very strange thing, indeed ; and 
yet it seems to me that question put by Judge Waller, as 



241 

to whether Congress had that power, was completely an- 
swered by the statement or suggestion made by Judge 
Dickinson, that Congress might have enacted a law, in- 
stead of that which they did enact wiping out the fellow- 
servant doctrine, establishing, in the matter of interstate 
commerce, the fellow-servant doctrine in terms. In other 
words, if Congress has the right to abolish the fellow- 
servant doctrine, certainly it has the right to establish 
it. Now, if the fellow-servant doctrine can be established 
by statute, and such statute is broad enough to make the 
engineer he had in mind, who was injured or killed, and 
the man who gave the wrongful order, fellow- servants, 
there could be no question of the fact that that law, as- 
suming the power to exist, would be valid, and that Con- 
gress could thereby take away the right which the en- 
gineer had under the State statute, to recover from his 
employer, provided he had been engaged in interstate 
commerce. 

We find in many of the Southern States, in Kentucky 
amongst others, that the fellow-servant doctrine is nar- 
rowed down and whittled down so that there is very little 
of it left. If we take a State, however, where these men 
that Judge Waller has instanced, the engineer and the 
train dispatcher, might be held to be fellow-servants (I 
am just trying to turn Judge Waller 's illustration around 
for the sake of seeing whether this law may be made ex- 
clusive), then Judge Waller's engineer would have no 
cause of action in that State. If Congress, in dealing with 
interstate commerce, can, by the passage of this law, give 
to that engineer a cause of action in such a State, why 
can they not take that cause of action away from an en- 
gineer, too, in Judge Waller's State, which he might have 
under his State law. 



2^2 

Now, it seems to me that this Act, if it has any appli- 
cation at all, so far as it affects men engaged in inter- 
state commerce, must be exclusive. In other words, Mr. 
Keeble, in his argument, used this sort of an explanation : 
That if a man who was operating a railroad train run- 
ning from one point in Tennessee to another point in 
Tennessee, was injured and brought suit, or was killed, 
rather, as he was illustrating it, and his widow should 
bring an action under the Tennessee statute, and then at 
the end of two years when her right of action would be 
barred, or the right of action of an administrator under 
this statute would be barred, some shifty trial lawyer 
upon the part of the railroad company would be able to 
show and establish that in that train that was being oper- 
ated by that engineer so killed, there was a small pack- 
age of interstate freight or commerce. Now, I want to 
turn that illustration around a little bit. Suppose, Mr. 
Keeble, that in another State than Tennessee, an engineer, 
just like your man, was killed, and that under the law of 
that State the man who gave the wrongful order or who 
caused the injury, though upon another train, would be 
a fellow-servant, and therefore no cause of action would 
exist. Now, this statute is enacted and the action is 
brought under this statute, and the "shifty trial lawyer," 
on the part of the plaintiff (and they are just as shifty 
on that side as the railroads can possibly get), is able to 
show that one per cent or half of one per cent of the traffic 
or freight being carried on that train was interstate traf- 
fic, and therefore that that engineer was engaged in inter- 
state commerce. Now, would he not bring himself and 
his cause under the operation of this Act! And if he 
does thereby bring his cause under the operation of this 



2 43 

Act, does not the Act apply for the benefit of everybody? 
If that case can come under this Act, then every case of 
a similar character, where yon can show that there is any 
interstate commerce involved at all, can be brought under 
this Act on the part of the plaintiff; and if it can be 
brought under this Act on the part of the plaintiff, the 
defendant can take advantage of it in the same way; so 
that in every case to which it applies it must necessarily 
be exclusive. 

Mr. Trabue: I should like to make a suggestion re- 
garding General Harrison's question. I believe that ques- 
tion has been determined on the Circuit. I saw a notice 
in a newspaper to that effect, although I have not seen 
the report of the opinion. 

Mr. Harrison : Will you tell me where that was ? 

Mr. Trabue: In Missouri. 

Mr. Harrison: The Southern Eailway's right to do 
business in Alabama was declared forfeited, under one 
statute to that effect, while the same question was pend- 
ing in the Federal court under another statute to the 
same effect. 

Chairman Stone : A statute of that kind was passed 
is Missouri, and Judge McPherson, of the Federal court, 
held the Act to be unconstitutional. 

Mr. G-alvin: The Sixth Circuit Court of Appeals 
held that that provision of the Kentucky statute is un- 
constitutional. 

Chairman Stone: In what report is that decision? 

Mr. Garvin: One of the Federal Eeporters — 132, I 
think. 

Mr. Trabue: It is several years old. On behalf of 
the Travelers' Insurance Company I argued a case of 



244 

removal from the State court of Kentucky to the Federal 
court against the Insurance Commissioner of Kentucky, 
and when I was invoking Barron v. Burnside, Mr. Justice 
Brewer said to me, was that not the case of an interstate 
railroad? Of course, I responded affirmatively, but that 
the court there expressly declined to put its decision on 
that ground, but put it on the broader ground. I men- 
tion this to show that at least one of the Supreme Court 
justices had thus taken the distinction clearly, and had 
it in mind, between an interstate railroad and an insur- 
ance company, which had always been regarded as not 
in commerce at all. 

Chairman Stone: I understand that the Alabama 
statute does not prescribe the forfeiture of the right to 
do interstate business in that State in the case of a re- 
moval to the United States court. It is only with refer- 
ence to intrastate business that the right is forfeited. 

Mr. Trabue: I have not encountered that question. 

Eegarding the point suggested by Mr. Galvin that it 
is a matter that must have been within the knowledge of 
the plaintiff or his attorney that the plaintiff was injured 
while engaged in interstate commerce, and that if the 
fact be suppressed and the petition so drawn as not to 
show it, it would be ground of fraud, I would say that 
I do not think that the plaintiff could be regarded as hav- 
ing acted fraudulently, because he might very well be 
ignorant in a great many cases of the fact that the train 
contained some article of interstate commerce. 

Chairman Stone: An engineer would naturally not 
know what kind of traffic was being carried in his train. 

Mr. Waller: It seems to me it is a very important 



2 45 

thing* to know how to proceed in cases of this kind, and 
I would like to hear discussion on that question. For 
illustration, take a case where a plaintiff brings his suit 
in a State court, under the general law of that State 
as applied to negligence as between master and servant. 
It does not appear that he is relying upon a congressional 
statute at all, but simply on the old law of the State as 
administered between master and servant. That being 
true, I do not see, if he is relying on the statute, how 
that case could be removed to the Federal court by a 
petition. He is simply relying on a State law. 

The question I have in mind is this : how should the 
railroad proceed to answer? As I understand Mr. Cary's 
suggestion yesterday, it was by demurrer. But there is 
nothing in the declaration showing he relies on the Act 
of Congress at all for his right of recovery. It seems 
to me, then, the question will arise as to what sort of 
a plea should be filed. 

If any one has any views on that subject, I should like 
to hear them. 

Chairman Stone : If it could not be raised by demur- 
rer, it could be by plea or answer setting up the fact. 

Mr. Waller : Would you file a plea setting up the fact 
that the injured or deceased was engaged in interstate 
commerce! 

Chairman Stone : Yes ; that would be with the inten- 
tion of trying it out in the State court, of course. 

Mr. Waller : And therefore the declaration not being 
based on the statute, there would be no cause of action. 

Chairman Stone: On the theory that this Act ex- 
cluded the operation of the State statute. You would 



246 

certainly bar a recovery by a plea of that sort or an 
answer setting up the facts. 

Mr. Hamilton : Is he not bound to state in his declara- 
tion, either that he was engaged in interstate commerce 
or that he was engaged in intrastate commerce? Must 
he not do one or the other, or else he has no cause of 
action? If he does not state one thing or the other, you 
demur and make him take a position one way or the 
other. 

Mr. Smith: It seems to me there is an error in re- 
gard to that. In a complaint or declaration that does 
not show a cause of action under the Federal statute, 
there is nothing to remove. Whenever an amendment is 
made that shows a cause of action under the Federal 
statute, then, for the first time, an action is brought under 
the Federal statute and you have a right then to remove 
before proceeding to further plead to such Federal cause 
of action. 

As to the demurrer, it seems to me that a demurrer 
always lies where the court would be unable to render 
a judgment by default. Whenever the complaint or dec- 
laration is not sufficient to enable the judge to render a 
judgment by default, there is a deficiency in the com- 
plaint or declaration which must be made good, or the 
judgment may be arrested. So that when a man has filed 
a complaint or declaration that shows that he has a com- 
mon law action or an action under the State statute, 
or an action under the Federal Act, but does not show 
which he has, the declaration or complaint is subject to 
demurrer, because such a declaration does not state affir- 
matively any particular cause of action, and in many 
instances the measure of recovery would be different ac- 



247 

cording to which was his true cause of action, and the 
court could not instruct a jury how to assess the damages 
upon a writ of inquiry. So it seems a demurrer would 
raise the question and compel the plaintiff to elect be- 
tween his causes of action and when he amends his com- 
plaint or declaration and for the first time alleges a cause 
of action under the Act of Congress, the cause could be 
removed. In some cases a cause of action might be al- 
leged when the measure of damages and the cause of 
action would be the same both under the law of the 
State and under the Act of Congress. In those cases I 
do not think a demurrer would lie, nor do I see how 
the cause could be removed to the Federal court. 

Chairman Stone: The demurrer, in that case, would 
not be a waiver of the right to remove. 

Mr. Smith : Not where no cause of action was shown 
by the complaint or declaration, under the terms of the 
Act of Congress, until the amendment was made. 

Mr. Neville : Suppose you would demur to a declara- 
tion which did not state a cause of action under this 
Act, and the court should overrule your demurrer, what 
position would you be in then, with reference to removal! 

Mr. Smith: Of course, you could not obtain a re- 
moval. If the plaintiff did not see fit to make a claim 
under the Act of Congress, there would be no necessity 
for a removal. 

So far as practice is concerned, my experience is not 
like that of Mr. Galvin. There are several considerations 
that are not the same. In the first place, the State judges 
before whom I try causes for the railroad have, as a 
general rule, I think, more respect for the representa- 
tives of the railroads than they have for the representa- 



248 

tives of the ordinary claimant of damages, and the consid- 
eration they show to the representatives of the railroad 
indicates more personal confidence, and this impresses the 
juries to some extent. The lawyers who represent dam- 
age suits have not, as a general rule, the same confidence 
of the juries that the lawyers who represent the railroad 
companies have. They have not, as a general rule, 
the same professional standing in their communities, and 
they do not have as much influence, in spite of the fact 
that there is a prejudice against corporations. Besides 
this, the citizens who constitute the plaintiffs in a large 
percentage of these suits have no advantage by reason of 
their acquaintance in the community; in fact, in my dis- 
trict many of them are at a disadvantage on account of 
their personal reputations in the communities in which 
they live. 

Chairman Stone: I will say for Mr. Smith's district, 
(Mobile County, Alabama, and the lower end of the State 
of Mississippi and along the Gulf Coast), that while that 
may be true, I do not think his statement will apply to all 
the counties in the State of Alabama. I think Mr. Jones 
will bear me out in that statement. 

Mr. Smith: I do not speak except of Mobile County 
and Mississippi. In some portions of Mississippi they 
have the reputation of being infected with populism, but 
despite that fact, in the counties in which I try causes 
I find the juries as conservative in the matter of rail- 
road damage suits as in any place I know of. They are 
better than the Federal juries. 

I have nothing to complain of with respect to the 
Federal courts. The Federal courts treat us with the 
same consideration as the State courts, and we do not 



249 

have much difficulty with the Federal juries; but I am 
inclined to think the State juries in that part of Missis- 
sippi where I try cases are inclined to find technical ques- 
tions against railroads, but the amounts of their verdicts 
are not very large. I do find that a great many of the dam- 
age suit lawyers are very much afraid of Federal courts, 
and the beneficial effect that it has had, in my experience, 
has been that they hardly ever sue my road for more 
than $2,000. So that if we kill a man we practically have 
a limitation upon the amount of our liability, and I find 
that very beneficial. Outside of that, I do not find much 
difference in the two jurisdictions, and I try a large per- 
centage of my cases in the State courts. 

Mr. Trabue : May I ask you this : suppose a declara- 
tion were drawn just as it always has been drawn; that 
is, not showing whether or not there was interstate com- 
merce in the train on which the employe was injured, 
would that declaration be demurrable now, since this 
Act was passed? 

Mr. Smith: Yes; where the measure of recovery or 
person having the right of action differs according to 
the two systems of laws — State or Federal — the char- 
acter of the business in the handling of which the cause 
of action arose is necessary to show upon which of two 
possible causes of action the suit is based. Formerly, 
of course, where such a complaint or declaration covered 
the case, whether the business was State or interstate, 
the declaration did show a cause of action. 

Mr. Trabue: Do you not think that that would be 
a matter of defense! 

Mr. Smith: I am quite sure that before the court 
could render a judgment by default, it would be necessary 



25o 

for the complaint or declaration to show a particular 
cause of action upon which the plaintiff in the cause is 
entitled to recover damages to be measured by some estab- 
lished rule of law. It would not be sufficient to show that 
the plaintiff is, or is not, entitled to recover, or, if entitled 
to recover, is entitled to so recover one measure of dam- 
age or another according to whether one set of additional 
facts or another, not alleged, exists. 

Mr. Warfield : Let us suppose that the court improp- 
erly overrules the demurrer. Then I would like to have 
your views upon a case of this kind: Let us suppose an 
employe on a train running from Louisville to Nashville 
is injured — an interstate train. In order to avoid the 
Federal statute and the Federal court, the accident hav- 
ing occurred between Louisville and Bowling Green, both 
in the State of Kentucky, suppose the petition should 
allege that he was employed to run between Louisville 
and Bowling Green. It is an untrue statement, but it 
is made. Now, would it be competent in a petition by 
the railroad company for removal for the railroad com- 
pany to set up the fact that that was a fraudulent state- 
ment and that the train upon which plaintiff was em- 
ployed when injured was destined from a point in the 
State of Kentucky to a point outside of the State of 
Kentucky? Would that justify removal! 

Mr. Smith : Yes ; but I think I should be inclined to 
stand on a variance at the trial between his allegation 
and proof. There would be a clear variance and I think 
it would be material when the defendant !s right of re- 
moval was affected thereby. 

Mr. Warfield : The court has overruled your demur- 
rer and you have to stay in the State court? 



251 

Mr. Smith: Shall I assume that that brought it 
within the Federal statute! I doubt very much if it 
would do so. 

Mr. Warfield: My point is as to whether an allega- 
tion of that character in your petition for removal would 
bring it within the Federal statute and justify or require 
the court to remove the cause. 

Mr. Smith : The fact that he was operating between 
two States? 

Mr. Warfield: Yes; the fact that he was operating 
between two States, that fact being made to appear for 
the first time in the petition for removal, the allegation 
being made in such petition that that was the true con- 
dition of affairs and that the plaintiff had fraudulently 
averred otherwise in his petition in order to retain his 
action in the State court. 

Mr. Smith: It does not seem to me that the aver- 
ment that he was operating between two States would 
be in conflict with the proposition that he was engaged 
in intrastate commerce. 

Mr. Warfield : No ; not necessarily. 

Mr. Smith: Therefore, I do not think that the fact 
that he had made that allegation would be a sufficient 
basis for the petition. I think if he has made allegations 
fraudulently and falsely in an attempt to show it was 
intrastate business, it would be sufficient. 

Mr. Trabue: May I ask you another question? Sup- 
pose the State court should overrule a demurrer and the 
case proceed to trial in the State court, do you think the 
Supreme Court of the United States would follow the 
State court on the question whether or not there was a 
cause of action? 



252 

Mr. Smith: I do not know that I am prepared to 
answer that. 

Mr. Cary: That would depend upon whether the 
question had been involved in the suit. The Supreme 
Court's jurisdiction does not depend on the pleading. 
It depends on the issue which is decided and determined 
in the case. 

Mr. Trabue: But the Supreme Court's decision 
would be that there was no removal unless there was a 
Federal question shown in the declaration, and if none, 
and the decision of the State court is conclusive, then 
there would be none. 

Mr. Cary: Suppose the case went to trial and there 
would appear something concerning the pleadings in 
which the court had made a mistake, and a Federal ques- 
tion had been involved? 

Mr. Trabue: Your point is this: That the record 
would show that there was a Federal question, although 
the petition did not show it. 

Mr. Cary: Yes. 

Mr. Trabue: That was the situation in the Vance 
case, 96 U. S., that was decided, you will remember, by 
the Supreme Court, and the Amador case. The court 
there held that although there might be fraud, yet unless 
the petition for removal counted upon fraud, there was 
no right of removal. In that case the lessor was joined, 
and it appeared on the trial that the lessor was not in 
existence when the accident happened, but the court re- 
marked that there was no allegation of fraud and that 
the fact that the lessor was not in existence was simply 
a matter of defense on the merits at the trial. 

Mr. Cary: But the subsequent record in that case 



2 53 

showed there was no ultimate Federal question involved, 
because there was no party. 

Mr. Trabue : The person who was joined was joined 
to prevent jurisdiction, and was not in existence when 
the gravamen arose, and that appeared in the record. 

Mr. Neville: I had intended to remain silent during 
this meeting, but I have concluded to break over the 
rule. This discussion has been very beneficial and inter- 
esting to me, as is every meeting of this sort. 

However much I might be inclined the other way, I 
am irresistibly driven to the conclusion, despite the 
splendid arguments of Mr. Keeble and Judge Waller, that 
this Act is exclusive. If this Act shall be held to be 
constitutional, then it does seem to me that no other con- 
clusion can be reached than that the Act is exclusive. 
The constitutionality and exclusiveness of the Act set- 
tled, then the next question is the one discussed by Mr. 
Garvin and others this morning, as to the mode of pro- 
cedure in reference to it. 

I am not in the position of my friends from Georgia. 
I live in Mississippi and I represent a railroad operated 
wholly within the State of Mississippi. I have but very 
little cause of complaint against the juries of my State. 
My observation and experience have been similar to 
those of Mr. Smith, but I know I have brethren repre- 
senting corporations who have had a widely different 
experience. I have heard of a verdict rendered against 
one of the corporations of Mississippi for $50,000, and 
the Supreme Court was kind enough to reduce the judg- 
ment $20,000 and leave it $30,000, and frequently verdicts 
of $20,000 have been permitted to stand in State courts. 
However, that, fortunately, has not been my experience. 



254 

Possibly I run under cover before I get to the juries. 
So I have nothing to complain of, but I do think that 
we would all be better off, perhaps, if the law was ad- 
ministered in the Federal court. I have reached that con- 
clusion at any rate. 

My friends from Georgia occupy a very peculiar at- 
titude. The last meeting I attended of counsel for Rail- 
roads they were begging to go anywhere, even to the 
Interstate Commerce Commission, in preference to Fed- 
eral Judge Speer. They said: "Don't send us to him. 
Send us anywhere, except to his court." So I do not 
know what will become of Rosser in the wind-up. I 
should, however, be eminently satisfied to remain in the 
State court, and eminently satisfied to go to the Federal 
court. As Mr. Smith and Mr. Galvin stated, there seems 
to be a fear, on the part of the damage-suit lawyer and 
the perjured witness, of a Federal judge and of the power 
of a Federal court. And I think I have seen, and know 
that I have seen, much better results in the Federal court. 

We have not declared that we thought the Act was 
constitutional. I apprehend that we have gone as far 
as the old man in my country who was a candidate for 
the Legislature, when the repeal of the Agricultural Lien 
law was a great issue in the country, and he was being 
pressed to give his views on the subject, and after hav- 
ing been pressed to the point where he could refuse an 
opinion no longer, stated that on the next day, at Sleepy 
Hollow, he would announce his views on the repeal of the 
Agricultural Lien law. He had a great crowd to hear 
him, and his views were expressed in these words: "If 
I shall be elected to the Legislature, on the question of 
the repeal of the Agricultural Lien law, I will take this 



255 

position : I will repeal a parcel of the sections and leave 
a parcel of the sections stand.' ' 

We have declared a "parcel" of the sections of this 
Act constitutional and a " parcel" of them unconstitu- 
tional. 

But it seems to me, as the Chairman stated before 
we began this discussion, and as other gentlemen have 
stated, that the most important question of all here now 
is the method of procedure. It is a question that is very 
interesting to all of us. If it arises in a case on my 
road, or in a case on the Louisville & Nashville road, 
or any other road, then the method of procedure in that 
particular case, if it is the first arising, should be one 
that appeals to all of us and should be a matter of vital 
concern to all of us. 

As to the demurrer, I think it would be necessary 
for a plaintiff to show sufficient in his declaration to 
take it without the Act, and that such pleading would 
be just as necessary, as for him to state the injury and 
the cause of the injury. But if he did not, a demurrer 
should be imposed, and I agree with Mr. Smith that 
if the demurrer should be sustained and he should then 
amend his declaration, and the declaration shows upon 
its face a proper cause for removal, we would then have 
an opportunity to present our petition for a removal. 

But suppose he did not, and suppose the court should 
overrule the demurrer in a proper case, a case that the 
demurrer should have been sustained in, where would 
we be then? I think we would be too late then to file 
a petition alleging the fraud upon the jurisdiction of 
the court, and we would then be left high and dry. In 
other words, a petition for removal would come too late, 



2 5 6 

after a demurrer was overruled. I am a little bit fearful 
of the State courts; I do not think they will be inclined 
to follow the view that the Act is exclusive. I think, as 
Mr. Waller says and as Mr. Keeble said yesterday, before 
they will do that you will have to walk right up to the 
Supreme Court of the United States and ask them the 
question and get the answer. So it is the same old story : 
we do not know what it is until the Court of last resort 
tells us. 

This is a matter of so much importance that we can- 
not overestimate it. I talked with Judge Dickinson about 
it, after he made the motion concerning the creating of 
a committee to further consider this Act, and there 
was a motion made to appoint another committee to con- 
sider the Employers' Hours of Labor Act and Safety 
Appliance Acts, and a further committee to consider the 
administrative rulings of the Interstate Commerce Com- 
mission under the Hepburn Act. I suggested to Judge 
Dickinson that my idea was that it would be a good thing, 
having virtually agreed upon the proposition that the 
Act was exclusive, that this committee to which this whole 
matter was referred should consider and advise as soon 
as possible upon the method of procedure, making a 
report that all of us can have the benefit of. 

It seems to me the question of procedure ought to 
be referred to that committee, for a discussion here would 
perhaps be desultory, and I know if lawyers are appointed 
on committees they are going to work, for see how we 
have been working. It has been hard to get the Chair- 
man to adjourn, at all, and I know the lawyers are going 
to work hard. I would ask that this report be made in 
ample time for all of us to proceed with safety upon 



257 

safe ground. I am very much in hopes that this will 
be done and that a method of procedure will be recom- 
mended by this committee, and I think great good will 
come of this meeting and the proper enforcement of the 
Act, because I think we will get into other fields by the 
proper enforcement of this Act that will be advantageous 
to us. I believe it is to be to the interest of the public 
service corporations in this country to have their affairs 
administered as completely as they possibly can, in the 
matter of control, by the Federal Government. 

Chairman Stone: And you come from Mississippi? 

Mr. Neville: And I come from Mississippi. But I 

am in the condition of my friend from Virginia. We 

have a Kailroad Commission, composed of three men, 

to regulate and control untold millions of property. 

Chairman Stone : The State Corporation Commis- 
sion has executive, legislative and judicial powers by the 
Constitution of Virginia. 

Mr. Neville: Yes, sir; and they have never made, 
I would not exaggerate to say, $500 in a position in 
any trade, occupation or calling, and could not in any 
other manner, except by bamboozling the people into 
electing them to some little office. Every one of them is a 
candidate for Governor. They will not listen to you about 
anything. The other day, in discussing the tax question 
upon our road, increasing the tax assessment upon our 
road $2,000 per mile, the president of our road, a very pa- 
thetic, yet strong, man, was describing the horrible condi- 
tion of things, especially the losses he had sustained within 
the last six months (you know him, Mr. Chairman, and 
you know how pathetic he can be, and he cusses a 
little bit, too), and in the midst of his pathetic and strong 



258 

appeal to be saved from this ruin and destruction, the 
Chairman of the Commission looked at him with the grav- 
ity of an owl, and said, "Don't you know what is the 
matter with the country and why the railroads aren't 
making any more money! ' ' ' ' No, ' ' replied the president 
of our road, "and I would like very much to know." 
"Why," said the Chairman of the Commission, "you have 
got too many railroads in Mississippi." The Chairman of 
this Conference witnessed the Governor of the State of 
Mississippi (it is no harm to talk about these people; 
it is not treason; they talk about us; it might do good 
to say something about them) in conversation with such 
men as Milton H. Smith, J. T. Harrahan and D. D. Curran 
(and they are the great railroad men of our country, 
who have come from the ditches up to the very highest 
position in railroad circles), saying, with a silly sneer, 
' ' If you fellows ain 't making any money out of railroads 
now, it is because there ought to be a change in man- 
agement. ' ' 

That is the condition of affairs, and I say that what 
we want to do is to try to get the enforcement of this 
Act, and to get the proper method of procedure, and when 
it is properly enforced I believe there is great good com- 
ing to us in other directions. 

Mr. Warfield: I would like to ask a question. I 
understood you to say that you thought a petition for 
removal would come too late after a demurrer had been 
overruled. 

Mr. Neville : Yes. 

Mr. Warfield: Then does it not follow, in a case 
where the plaintiff ought truthfully to have' alleged the 
fact saying he was an interstate employe and therefore 



259 

came under this Act, but where he has failed, and pur- 
posely failed, to make such allegations in order to stay 
in the State court, that then the first step to be taken 
by counsel is to file a petition for removal, setting up 
the omitted facts ? 

Mr. Neville : And charge fraud upon the jurisdiction? 

Mr. Warfield: Yes. 

Mr. Neville: Yes; I think so. That is my idea of it. 

Mr. Brewster: There is one condition that I wish 
to suggest to the Conference and ask an opinion on. Many 
States have laws which give rights of action, not to per- 
sonal representatives, but to different individuals — wife, 
parent, child, etc. This Act gives the right to the admin- 
istrator or personal representative. 

Chairman Stone : For the benefit of certain relatives ? 

Mr. Brewster: For the benefit of certain relatives. 
The application of this Act depends upon a question of 
fact. The party must have been engaged in interstate 
commerce, in order that this Act may apply or the rights 
which arise under it might be availed of. Now, there 
will be a conflict in every State where a right of action 
under the State law is given to these other individuals — 
the wife, the parent, the child, etc. For instance, take 
Georgia. There the right is given to the widow in the 
first instance, in case of the death of her husband, and 
it is given to the husband in case of the death of the 
wife. If no husband or wife, then to certain other 
people, but in no instance to the personal repre- 
sentative. If the husband is killed, the widow goes into 
the State court and sues, on the theory that her hus- 
band was killed while engaged in an act relating to in- 
trastate commerce, and the administrator appointed upon 



26o 

the estate goes into the Federal court and alleges that 
the deceased came to his death while engaged in an act 
relating to interstate commerce. Now, the right to re- 
cover, in both cases, depends upon the fact whether the 
deceased was engaged in interstate or intrastate com- 
merce. The woman tries her case in the State court y 
and the tendency is that every fact necessary to sustain 
that action will be found in favor of the widow, if it is 
a widow suing, to determine the issue whether it was 
an intrastate transaction. On the other hand, the ad- 
ministrator bends all his energies in the Federal court 
to establish the fact that it was an interstate transaction. 

What are you going to do? The Federal court can 
not enjoin the State court, and the State court can not 
enjoin the Federal court. The result is, even if this 
Act is exclusive, that in the one case the widow will get 
a judgment against the railroad company for a large 
sum of money, and, in the other case, the administrator 
will likewise get a large verdict against the railroad 
company in the Federal court for the same accident. 

In that contingency, what are you going to do? How 
are you going to settle that question? How are you going 
to get out of it by any known method of precedure? 

Mr. Cary: "Would this not be the situation in that 
case? The action is either one thing or the other. There 
are not two causes of action, one in the State court, to 
be proceeded with to a finality, and one in the Federal, 
to be proceeded with to a finality. If there be a right of 
action in the Federal court and the facts show that as 
to the same injury, with respect to the action which has 
been brought in the State court, the plaintiff was em- 
ployed in interstate commerce and the defendant was 
employed in interstate commerce, of course that judgment 



26l 

will stand; and if, notwithstanding that fact, the judg- 
ment in the State court be carried to a finality and to 
the Supreme Court, then it seems to me that your right 
would be by writ of error to the Supreme Court of the 
United States, to show the situation there; that is, to 
show that there had been a res adjudicata of this question 
in the Federal court and that it had been disposed of. 
The record could be made complete in the State court, 
showing the fact that judgment had been obtained in the 
Federal court on the same proposition, and then the 
record taken to the Supreme Court of the United States 
to show that the Federal court had had this proposition 
before it and that the two were the same thing. 

Chairman Stone : Right on that point I want to say 
that I do not know but what the statute of limitations in 
Georgia bars such an action in one year. It is so in 
some States. 

Mr. Brewster : Two years. 

Chairman Stone : Suppose the judgment in the State 
court had been recovered first, and the record closed, be- 
fore the judgment in the Federal court, how would you 
get the plea of res judicata into that State court record, 
with the view of taking it to the Supreme Court of the 
United States on a writ of error? 

Mr. Cary : In that case, would it be necessary, if the 
facts in the State court showed that the court had no 
jurisdiction? Are you not in just the ordinary case of 
having your Federal question involved and taking a writ 
of error from the Supreme Court of the State to the 
Supreme Court of the United States? 

Chairman Stone : Suppose the facts that Mr. Brews- 
ter suggests show that it was an intrastate transaction, 
and the jury so found? 



262 

Mr. Cary : My answer to that would be that the con- 
clusions of the jury are decisive of your question. That 
is the unfortunate position the defendant is in. The 
truth can only be one thing: the State court has found 
that this was not an issue which fell under the Fed- 
eral Act. 

Mr. Helm: Would this be the idea: Suppose the suit 
by the administrator was a matter in which the cause 
of action was given to the State court. It would depend 
upon the carrier in every case to show on the record 
whether or not there was something that went beyond 
the State border, making it, as matter of law, intrastate 
or interstate, as the case might be. The matter is prac- 
tically in the hands of the carrier. He can show from 
his record certain facts which the other side can not 
contradict. 

Chairman Stone: Suppose that they can be contra- 
dicted and the question is left by the State court to the 
jury and the jury finds adversely to the carrier's con- 
tention? 

Mr. Helm : You have assumed that they can produce 
evidence. Suppose you have a train from Louisville to 
Bowling Green, and it is shown by the records that there 
were certain shipments going beyond the State borders, 
or certain passengers going beyond the State borders? 
That determines the character of the train, as I think 
was pretty well determined yesterday, and I think my 
position on yesterday was probably erroneous. Now, if 
that be true, how will the other side show that there 
were not any passengers going beyond, or how will they 
show that there was no freight on the train going beyond ? 
Assuming that they can not, is it not a question of law 



263 

whether it was an interstate or an intrastate train? — a 
question for the court and not for the jury? 

Mr. Cary : A question of fact. It is. 

Mr. Helm: I say let it be assumed that there is 
freight on the car going beyond the State border. Ought 
not that determine the character of the train? 

Mr. Brewster: Suppose they disbelieve your wit- 
nesses, which they sometimes do, what will you do? 

Mr. Wright : In that connection, I suggest this : where 
suit is pending in the Federal court under this Act and 
one in the State court under the State law, that you file 
a pleading in the State court proceeding, the facts being 
wholly within the knowledge of the carrier, setting out 
the real facts and that it is an interstate transaction and 
controlled by interstate law, and that that law is exclusive. 
You have your record in that shape so as to get the 
benefit of a proceeding on writ of error to the United 
States court, through the highest court of the State, and 
at the same time file a petition in the proceeding in the 
Federal court, setting out the pendency of this suit in the 
State court, based upon the same wrongful act, and ask 
the Federal court to restrain the plaintiff from prosecut- 
ing the suit in the State court as was done in the Madison- 
ville Traction case, and let the Federal court determine 
whether it is a proceeding under the interstate commerce 
law or under the State law. 

Mr. Neville : In a proceeding of that sort, would you 
not file your plea setting up the fact that this was an 
injury for which suit should be brought under this Act 
and aver the proof to show that the train was engaged 
in interstate commerce, and on attempted contradiction 
by the plaintiff, or no attempt to contradict, would not 



264 

the defendant be entitled to a peremptory charge? It 
seems to me there would be nothing for the jury to de- 
termine. 

Mr. Wright: And if the Federal court determined 
that the Act was applicable, then the whole proceeding 
in the State court would be void and nugatory, as this 
Federal Act is exclusive, and whatever action is taken 
in the State court is an absolute nullity. 

Mr. Trabue : We have had that same question a num- 
ber of times in the western district of Kentucky. Our 
Kentucky Court of Appeals, likewise, has made some very 
peculiar rulings. Almost every case that the Illinois Cen- 
tral removes from the State to the Federal court is tried 
in both courts. The case goes to the Court of Appeals 
of Kentucky, and that court now holds that it will con- 
sider the evidence and determine whether or not that 
shows fraud, notwithstanding the ruling of the Federal 
court. 

Mr. Brewster: I want to make this suggestion: the 
want of parallelism between that situation and mine. 
In this case there are different parties and they claim 
their rights under different statutes and on different 
grounds, and the right depends on what the facts are. 

Mr. Trabue : In the case stated, I think the Court of 
Appeals is clearly wrong. I do not think the State courts 
can try the question of fact upon which depends the 
jurisdiction. The State court must accept the allegations 
of the petition for removal as true, and the plaintiff must 
go into the Federal court and move to remand. Now, 
upon the issue which the plaintiff in the Federal court 
makes upon the allegations of the petition for removal, 
the matter must be tried, and the sole jurisdiction to 
try the question of fact, upon which depends the removal, 



265 

is in the Federal court. Those questions of fact can not 
be determined on a trial of the merits, either in a State 
court or in a Federal court. But it has been held in our 
circuit, upon the authority of the Madisonville Traction 
case, to which Mr. Wright referred — 

Chairman Stone: And which was decided by the 
United States Supreme Court. 

Mr. Trabue: Very lately — and the McAllister case 
(decided in our Eastern District and affirmed by the 
Appellate Court), that the Federal court may enjoin the 
plaintiff from proceeding in the State court, although 
there had been decisions otherwise, previously, based on 
the idea that the proper procedure was by writ of error 
from the United States Supreme Court to a court of last 
resort in the State, unless there was some special reason 
for injunction, like the State court's dissipating the funds 
that ought really to have been administered by the Fed- 
eral court after removal. But it is now held that this 
injunction will lie wherever the case is wrongfully pro- 
ceeding in the State court after removal, and our judge 
in the Western District declares to the lawyers that they 
must obtain injunctions and that he will not witness the 
case proceeding both in the Federal and State courts. 

Mr. Waller : The case Judge Brewster puts is wholly 
different. The plaintiffs are different and the declara- 
tions are different. The one in the Federal court is based 
on the fact that the defendant is engaged in interstate 
traffic. 

Mr. Trabue: I understand that. It certainly is a 
novel question, and I suggest whether or not the pro- 
ceeding in the Federal court to enjoin the plaintiff from 
proceeding in the State court might not be pressed with 



266 

the object of concluding the whole case and letting the 
judge of the Federal court pass upon the question of 
injunction, not only against the plaintiff in the case which 
is removed, but against the administrator who is seek- 
ing to recover for the same thing in the State court. 

Chairman Stone: Pass on the same cause of action 
and same accident in each case? 

Mr. Trabue: Upon the point that the plaintiff in 
the State court is a necessary party to the complete deter- 
mination of the whole question. 

Mr. Tye: It occurs to me that the real difficulty in 
connection with the demurrer that has been suggested 
is that the demurrer would be in the nature of a speak- 
ing demurrer; that is, it seeks to apply a principle to 
a matter that is not apparent on the face of the pleading, 
and this, therefore, being in character speaking, would 
be unavailing. 

Another real difficulty would be as to the filing of 
the plea setting up that this was an interstate matter; 
that this would make an issue which would have to go 
to the jury. There could be very easily sprung the 
question that the matter was intrastate, and as very little 
evidence would be required to carry this to the jury, 
the real difficulty connected with it is, what would be the 
escape from the finding of that jury, and how could we 
keep that question from being submitted to the jury? 
In Georgia, where the right of action is given certain par- 
ties in cases of homicide, and in no event to a personal 
representative, a general demurrer would be sustained 
where a personal representative files a suit, on the ground 
that there was an improper party plaintiff. 

If, however, the question should be suggested that as 



267 

the laws of Georgia do not provide for suits by a per- 
sonal representative, while the Federal Act does, I think 
the Federal Act (and there seenls to be no doubt on that 
proposition) would supersede our State laws. I remem- 
ber that under the law that was in force, the recent Em- 
ployers ' Liability Act, I was put in this peculiar situa- 
tion; that immediately after a homicide a suit was filed 
by the widow. We settled that suit and obtained a full 
acquittance from the widow. Immediately after the ad- 
justment of that suit under the Federal law, an adminis- 
trator was appointed and a suit filed in the State court by 
the personal representative. 

Chairman Stone: Under the Federal statute? 

Mr. Tye: Under the Federal statute. I confess I 
looked upon that case with considerable solicitude. I took 
my chances in settling with the widow. I recognized the 
danger that the settlement might not be held valid on 
account of the existence then of the Federal law on that 
subject. Fortunately, the Supreme Court held that Act 
to be unconstitutional, and that relieved the situation. 

But after considerable study on that subject I felt no 
little uneasiness in regard to the result, and I came at 
last to the conclusion that if the Federal Act had been 
held valid, that suit would have held good and I would 
not have been protected in the settlement. 

The real difficulty here is, I think, that there will 
be injected into this question one of fact, and, of course, 
you know what that means. It seems to me, in view of 
the statute that the question involved in the suggestion 
made by Mr. Brewster is a difficult one. You can not 
set up in the one court where the suit was brought by 
the designated person under the State statute, res adjudi- 



268 

cata to the suit in the Federal court by another person, 
because the parties are not the same. It seems to me 
that the suggestion made by Mr. Wright is a practical 
one : file your plea in the State court, setting up the fact 
that this is an interstate matter. . 

Chairman Stone : File your plea in the State court ? 

Mr. Tye: File your plea in the State court. But 
the danger of that will be the submission of that question 
to the jury and the slight evidence required to establish 
that it is an intrastate matter. 

Mr. Wright: My plan is to restrain the State court 
proceeding before it proceeds to an adjudication, so that 
it is immaterial that the parties are different, so long 
as the two suits grow out of the same wrongful act. 

Mr. Brewster: Let me ask you this question: We 
are getting down to a question that is very likely to arise. 
This Act provides that the carrier is to provide proper 
sidings, tracks, etc. An interstate train arrives at a town 
and the crew of that train is unloading goods into the 
local depot out of a car which contains both interstate and 
intrastate freight. In passing from the car to the plat- 
form of the station a skid breaks and kills a man. The 
widow says that the package which broke the skid was 
shipped from a place in the State to this town in the same 
State. The administrator says that that is not true, but 
that they were unloading a certain article that was 
shipped from a point outside of the State to this station 
in the State. Now, you have the question that the jury 
passes on. If the widow's contention is true, then she 
certainly does not come under this Act, and it is a fact 
that that jurisdiction, the State, has the right to try. 
How are you going to get it out? What right has any 



269 

court, Federal or otherwise, to pass on that question and 
conclude that widow? 

On the other hand, the administrator has a right and 
he goes into the Federal court, and on the same evidence, 
which is in conflict, this jurisdiction may hold that it 
was an interstate package that broke the skid, and there- 
fore it comes within this Act. The one jury, which has a 
right to pass on it, holds that it was an interstate case, 
and the other jury holds that it was the other package that 
broke the skid and therefore it was an intrastate case. 

Mr. Wright : In a case like that, you will finally get 
both proceedings in the United States court, if you have 
properly shaped your pleadings to raise the question, and 
that court is not going to allow two recoveries on the 
same wrongful act.. 

Mr. Brewster : The United States court is not going 
to question the finding by the jury, because they find 
on the facts and that court will not review the facts. 

Mr. Cary : Is not the situation this : you are assum- 
ing what theoretically is an impossibility; that is, the 
truth is the truth and it must be proved in one way or 
the other? Now, as a matter of fact, the jury does de- 
cide in the State court and there is a judgment entered 
one way. The jury in the Federal court decides the 
other way and the judgment is entered. Is not your only 
practical basis of protection the attempt to show the judg- 
ment in one court in proof in the other court that the 
particular wrong which is being sued on there has been 
adjudicated and determined either one way or the other? 
The answer which has been given to that is that it is 
not the same party in each instance. But when you con- 
sider that the action is statutory in character and that 



27 o 

the party who brings the action brings it, not because 
of the right in himself to recover, but brings it simply 
because he is named by the statute to recover for the 
benefit of those who are concerned, are you not in a 
little different position from where you have two plain- 
tiffs who are bringing actions for their own benefit? In 
the former case, the two parties are acting under the 
State statute in each instance for the benefit of the par- 
ties to whom the statute gives the right. If the widow is 
benefited she is benefited by reason of the statute, not 
because she brings the action. Therefore, it seems it 
might be possible in those proceedings to plead, in one 
case, the judgment in the other case, whatever it might 
be, and to prove, in pleading the judgment, that there is 
absolute identity from the standpoint of the wrong on 
which the recovery is sought. 

Mr. Smith: Do you think the character of the par- 
ticular package that broke the skid, and thereby caused 
the injury complained of, would determine it? 

Mr. Cary: No; I think that would be another pro- 
ceeding. I do not think that would necessarily be the 
issue, and it does not affect the principle we are now dis- 
cussing. 

I was going to say one thing further, when I was up 
before, with regard to the question of demurrer. Is the 
.demurrer, as was suggested, a speaking demurrer? Is 
not this the proposition: The plaintiff draws a declara- 
tion in which he fails to set up jurisdictional facts, either 
under the State law or under the Federal law; that is, 
the description of the defendant is indefinite, and the 
description of the plaintiff is indefinite. The defendant 
comes into court and demurs, and this is the argument 



2 7 I 

I make: "The declaration is indefinite and therefore I 
can not determine what issnes are presented to me to 
plead to." Suppose it is in a State where the statute of 
limitations is three years (under this Federal Act the 
statute of limitations is two years). I say to the court: 
"I may want to plead the statute of limitations. I don't 
know from this declaration what issue this party has 
presented to me. It is not to be presumed that he means 
to rely on the State statute, because he fails to say any- 
thing about whether or not the defendant was engaged 
in interstate commerce. There is nothing to presume 
that he was engaged in intrastate commerce, because he 
has said nothing about it in his statement. He has left 
himself indefinite and the defendant indefinite, and there- 
fore I say the declaration is absolutely indefinite and I 
want an issue to plead to." I ask the court to make his 
declaration certain, so I may know whether the State 
statute of limitations applies or whether the Federal stat- 
ute of limitation applies. 

Chairman Stone : Do you mean on demurrer or on 
motion that he make his declaration more definite? 

Mr. Cary: I think that would depend on the local 
methods of pleading in each State. The principle, how- 
ever, would be the same. In other words, the proposition 
before the court is that his declaration is indefinite and 
is not sufficient to enable the defendant to present an 
answer. 

Mr. Smith: Suppose the declaration alleged that he 
was either an intrastate or an interstate employe, would 
the demurrer lie to that? It has been held in our State 
in a number of cases that where the complaint alleges, 
in the alternative, that either one or the other of two 



272 

facts exists, either of which would, if alleged without the 
other, have giveu a cause of action, the complaint is sub- 
ject to demurrer, because it alleges nothing positively, 
but only that if one set of facts does not exist, then an- 
other does. A confession of this would not determine that 
either set of allegations is true. 

Mr. Cary : Silence is the same thing. 

Mr. Smith : Silence is the same thing in legal effect. 

Mr. Helm: The suggestion that I want to make is 
this : that the fact upon which the two juries are sup- 
posed to differ is not a material fact. The fact that an 
intrastate package struck the skid and caused the damage 
is entirely immaterial evidence to establish such a fact 
and would be inadmissible. 

Chairman Stone : It is not a controlling fact? 

Mr. Helm: No. 

Chairman Stone: You mean as presented by Mr. 
Brewster? 

Mr. Helm: Yes; the question is: was the employe 
injured or killed while engaged in interstate commerce? 
Now, that question is not determined by proving that 
the particular package handled was intrastate or inter- 
state, but in order to determine it, you have to determine 
whether the train was engaged, or the company was en- 
gaged, at the time, in interstate commerce; and if there 
be any interstate commerce on the train, it is engaged in 
interstate commerce, although there may be, as was said 
yesterday, a hundred times more of intrastate traffic than 
of interstate traffic. 

Chairman Stone: The issue is not dependent upon 
the question whether the employe was struck and in- 
jured by an interstate package or by an intrastate 
package ? 



273 

Mr. Helm: No; I think it is absolutely immaterial. 
And when the railroad company comes into court it will 
be able to show by evidence absolutely whether the train 
was engaged in interstate or intrastate traffic alone. If 
there be anything destined across the border, and pass- 
ing over, it seems to be the consensus of opinion here, 
and I am inclined to think it is right, that the defendant 
was engaged in interstate commerce, without any refer- 
ence whatever as to the amount of interstate traffic. When 
that record evidence is shown and there is absolutely no 
attempt to contradict it, as I suppose there could not be, 
would not the trial court be justified in saying — indeed, 
would it not be its duty to say — "this evidence being a 
record kept at the time, unless there is something to im- 
peach that record, you must find that the train was en- 
gaged in interstate traffic." Now, suppose the jury find 
it was not — just arbitrarily. Is it not to be supposed that 
the trial court would force a verdict or grant a new 
trial? But if it did not, is it to be supposed that the 
court of final resort in the State would be likewise un- 
reasonable, and, without finding anything in the court 
record to show any impeachment of the record kept by 
the railroad company, nevertheless, sustain the verdict 
and affirm the judgment? Would not that court say that 
the verdict was flagrantly against the evidence? And 
if it did not, you have the Federal question presented, 
and when it goes to the Supreme Court, being a question 
in which the right of the railroad company rests upon 
Federal law, the Supreme Court will examine it. It does 
not seem to me, therefore, that we are in serious danger 
of having two verdicts on the same cause of action, grow- 
ing out of the same failure of duty, each presumptively 
being given as full compensation for the injury done. 



2/4 

Mr. Galvin: Will the Supreme Court examine into 
the question of fact? 

Mr. Helm : Undoubtedly, where the question of juris- 
diction depends upon the facts. 

Mr. Rosser: Suppose it was a passenger and not 
freight, then you might not have the record evidence. 

Mr. Helm: I am saying that if there is a passenger 
who is in fact an interstate passenger, we should have 
a record of it. 

Mr. Rosser: You might not. 

Mr. Helm: But my answer is based on the assump- 
tion that the railroad company would be able to produce 
satisfactory record evidence determining whether or not 
the train was engaged in interstate commerce. 

Chairman Stone : As I understand your position, you 
hold that the Supreme Court of the United States would 
determine the question of fact on which the Federal ques- 
tion turned. 

Mr. Helm: That is right. Where it is a question 
of jurisdiction, where the right to appeal to the Federal 
forum depends upon a question of fact, the Supreme 
Court will examine it. 

Mr. Brewster: I hope my brother is correct in his 
idea as to what this question means, because if he is 
correct, then none of these questions becomes interesting, 
because I do not suppose there is a single train run on 
the American continent that does not carry interstate 
traffic of some kind; and if one item of traffic on that 
train makes it interstate, and everybody connected with 
it, whether handling intrastate traffic or that particular 
package, is engaged in interstate commerce, I do not think 



275 

there is anything in the question, because it places every- 
body under this Act. 

Mr. Keeble: I would like to make a suggestion in 
regard to the question that we have been discussing, that 
is, what should be done where a declaration is filed in 
a State court, stating the cause of action, but not rely- 
ing on the Federal statute, nor stating any fact which 
would bring it under the statute? 

I have about reached this conclusion: That while I 
would file a petition for removal, alleging that the facts 
upon which this case was predicated arose out of an 
interstate transaction, I would not expect that to be 
granted. I would expect the court to overrule that peti- 
tion, for the reason that the declaration itself would con- 
trol the right of removal. But after I had done that and 
had received an express adjudication on the part of the 
trial judge, that there was no fact alleged in the declara- 
tion which would justify the conclusion that a Federal 
question was involved, I would expect the court, when 
he came to charge the jury, to say that they must dis- 
regard the Federal law, and if the facts in that case 
showed that it was a case arising out of the Federal stat- 
ute (assuming for the once that that remedy is exclusive), 
that there was a variance between the declaration and 
the proof and there was no allegation in the declaration 
upon which a recovery could be predicated. If he failed 
to do that, I think a motion in arrest of judgment would 
lie in our practice, and I think that would be a remedy 
open to every defendant. 

If a party says in court, in response to a petition 
for removal, that there is nothing in the declaration which 
raises the question of the applicability of the Federal 



276 

statute, certainly that court would not be so inconsistent 
as to declare this to be true from the face of the declara- 
tion, and then charge the jury that the plaintiff may sub- 
sequently show facts which would have raised the Federal 
question, and submit that question to the jury. There- 
fore, I believe that that points out a way which, while 
it may temporarily delay those gentlemen who seem de- 
sirous of going into the Federal courts, yet it will ulti- 
mately bring about a situation that wherever the facts 
are shown that the plaintiff can not recover except under 
the Federal Act, the plaintiff will necessarily have to 
plead the Act, or facts which will bring the case under 
the Act. 

That is the only practical way I see out of the dilemma, 
and unless some gentleman can give me better instruc- 
tions I shall proceed upon that theory in my district, 
because I believe that is a sound proposition. 

I do not have any hope of being able to know what 
to do, with reference to the other question, except to do 
everything that occurs to me. I refer now to the case 
where two suits may be brought. I do not believe that 
Mr. Wright's suggestion is sound, on the ground that 
the parties to a suit determine the question of res 
adjudicata. That is the point that was made in a 
case in our own State, where a man and his wife brought 
suit against the railroad company to recover damages 
for the killing of a horse and a verdict was rendered in 
favor of the defendant company. Subsequently, the hus- 
band brought suit in his own name to recover for the 
death of the horse, and a plea of res adjudicata was filed, 
and our court held that that plea was not good, because 
the parties were not the same and that the court could 



277 

not presume that the jury had determined in favor of 
the railroad company on any proposition other than that 
plaintiffs were not able to prove title in themselves, and 
such suit was properly decided in favor of the defendant. 
That is an adjudication that was made on appeal by our 
own State court. 

Chairman Stone : That is, the Supreme Court of Ten- 
nessee decided that? 

Mr. Keeble: Yes; and in cases where the question 
was raised as to whether when a party is suing as a 
trustee, a cause of action in his name would, in case he 
should fail for any reason to recover, be a bar to any 
action by the beneficiary of the trustee, has also been 
considered. In a smoke suit I had occasion to collect 
cases in a number of States and I found invariably, 
where the proof showed that there were two parties to a 
case, or a party in a representative capacity, when he 
had no right to recover in a representative capacity, that 
that was not a bar, and that therefore the plaintiff had to 
show -in that case, or the case was demurrable, that he 
had a right in this capacity. 

If you take, for instance, the question that Mr. Wright 
raises about this recent case in the Supreme Court of 
the United States, with reference to the Federal court 
enjoining the proceedings or not enjoining the proceed- 
ings, by the parties to a proceeding in the State court, 
after the Federal court had taken jurisdiction, of the 
filing of the transcript of the record, I find that case to 
be decided that the court will not allow the same parties, 
one of whom is already under the jurisdiction of the 
Federal court, to continue a proceeding in the State court, 
regardless of the fact that the Federal court has taken 



278 

jurisdiction. But I do not believe there is any difference 
between the right of the widow to proceed with her right 
of action if she is not a party to the case removed or 
the case brought in the Federal court and the case where 
the question of res adjudicata is raised. 

Mr. Wright: I do not want to be misunderstood as 
saying that it is not necessary that the parties be the 
same in order to sustain a plea of res adjudicata. I agree 
with Mr. Keeble that they must be the same in order to 
support such a plea ; but I do not think I made that state- 
ment. My idea is to never let the State court case reach 
an adjudication, but to restrain it before reaching that 
point by filing the petition in the Federal court proceed- 
ing, alleging that it happened while engaging in interstate 
commerce and that the State proceeding was based on 
the same wrongful act, although the parties in the repre- 
sentative capacity instituting suit may be different. 

Mr. Galvin : It seems to me that the matter could be 
very easily straightened out by the suggestion of Mr. 
Keeble. Mr. Keeble said if an action of this kind is 
brought against him in the State court, either by the 
widow, or however it may be, his course would be to file 
a petition for removal, setting up that the deceased per- 
son was engaged in interstate commerce and that he came 
under the operation of this Act of Congress, and that 
therefore a Federal question was involved and the case 
was removable to the United States court. Then, he said 
he would expect that to be overruled by the State court 
and the State court would attempt to hold him to it; the 
petition for removal would be overruled. Now, the proper 
proceeding would not be to stop there. You might have 
to try your case and the State court might compel you; 



279 

but, in the meanwhile, as soon as the State court over- 
rules your petition for removal, you should take your 
transcript from the State court to the United States court 
and immediately file it in the United States court. There 
you have alleged, in your petition for removal, the Fed- 
eral question, and, to be on the safe side, I never would 
fail to allege that the plaintiff, in bringing this action, 
fraudulently concealed the fact that this was an interstate 
matter, and thereby you would get into the petition for 
removal the question of fact of fraudulent purpose on 
the part of the plaintiff in bringing the action in the 
State court, attempting to bring it under the State law; 
and this makes a question of fact to be decided by the 
Federal court. But when you once get your suit in the 
Federal court (the first suit talked about by Judge Brew- 
ster — you take that into the Federal court), then you can 
enjoin all other proceedings in the State court by an 
action against the parties filed in the Federal court. 

Mr. Helm: May I make a suggestion to you? If it 
appear on the face of the petition that this is an interstate 
matter, and you have to allege fraud, are not the chances 
there largely that any Federal court would hold that there 
was no fraud in a great proportion of the cases? For 
instance, a brakeman sues. Now, he can say, and say 
with perfect truth, ' ' I did not know there was a shipment 
on the train going across the border, or I did not know 
there was a passenger going across the border. I was 
perfectly sincere in bringing my suit in the State court. ' ' 
How can the Federal court do otherwise than hold the 
question of fraud against you? 

Mr. Garvin : That might be true. You may have to 
go back to have the question ultimately determined in the 
State court. 



28o 

Mr. Helm : What I want to suggest to you, as matter 
of practice, is what is recommended in this report that 
we have before us, of which we all have a copy, namely, 
that the safest plan, when the petition or declaration does 
not on its face show facts which enable us to remove the 
case, is to file our plea raising the Federal question in 
the State court, and then take up the case, if necessary, 
by writ of error; but if you have any real evidence by 
which you think you can establish fraud, then you can 
remove. But in a great majority of cases you will not 
have it, and would not the safest plan be to file your 
answer in the State court and raise the Federal question 
and go up on writ of error? 

Mr. Galvin: The thing I am afraid of is that when 
you get to the Supreme Court of the United States they 
will say that "the question of fact was tried and deter- 
mined by the jury, and we will not go into the question 
of fact." 

Mr. Helm: I do not think they will say that where 
the jurisdiction depends upon the question of fact. 

Mr. Neville : Suppose the fact was disclosed, notwith- 
standing the plaintiff knew nothing in the world about it 
and the averments of the petition were true, and he was 
injured while engaged in interstate commerce; suppose 
that in your petition to remove there is this allegation, 
that the plaintiff was seeking to obtain jurisdiction of 
the State court, either not knowing the fact, or, knowing 
it, stating it falsely : would not the fact still be true and 
would it not be a fraud in law that would entitle to re- 
moval? 

Mr. Helm : I do not think it would, sir. There are 
certain cases which can be taken up alone on the plain- 



28 1 

tiff's showing, in his petition or declaration, certain facts. 
There are other cases in which the facts can be shown in 
your petition for removal. In the first class of cases you 
must show fraud or the Federal court will not take juris- 
diction, and you do not show fraud in the case I have 
suggested. 

Chairman Stone : In addition to the question we have 
under discussion, Mr. Bobbins, on the first day, was pro- 
ceeding to discuss before the Conference this additional 
question which rose out of Question 18 that we have had 
under discussion since yesterday afternoon: 

18V2- Is the power of Congress to regulate inter- 
state commerce paramount over the right of the 
Legislature of a State to regulate intrastate com- 
merce? What has Congress to do with the functions 
of juries of State courts'? Does the direction in Sec- 
tion 3 as .to the action of the jury indicate that this 
Act is an Act to regulate suits under the statute in 
Federal courts, rather than an Act to establish rules 
of liability binding on State courts'? 

If there is anyone here who desires to discuss that 
question, we shall be very glad to hear him now. Mr. 
Bobbins, himself, is not here. 

Mr. Helm: I suggest that most of that question was 
discussed yesterday and to-day while we were consider- 
ing the question of exclusiveness. 

Mr. Jones : Mr. Chairman, I had not expected to say 
anything during this discussion, but before leaving the 
subject of the Employers' Liability Act, I desire to say 
a very few words. 

I deplore the fact that there is a manifest tendency 
on the part of many of those who have participated in 
the discussion to concede the constitutionality of this Act 



282 

as it stands. I also deplore the fact that it seems to be 
essential, in attempting to get the Act declared unconsti- 
tutional, for us to assail it upon the ground that it invades 
the reserved powers of the States in the matter of the 
regulation of carriers and to invoke some doctrines which 
if we shall prevail in our contentions, may rise up to 
harass us in the future; still it seems to me that it is of 
paramount importance that we shall induce the courts to 
declare this Act unconstitutional, if possible, regardless 
of the fact that in order to do so we may have to resist 
the encroachment by Congress upon the so-called reserved 
rights of the States in the matter of the regulation of 
common carriers. 

To my mind, the Act is vulnerable from many stand- 
points. It might as well be entitled "A bill to regulate 
the domestic relations of the citizens of the several 
States/' who happen to be engaged in interstate com- 
merce by railroad. It regulates the laws of descents and 
distributions in the several States, ignoring State stat- 
utes on that subject. I do not see how this can be re- 
garded asa" regulation of commerce among the States, ' ' 
and if this Act is not a regulation of interstate commerce, 
Congress is without power to enact it under the com- 
merce clause. 

But it seems to me the strongest point of attack is 
the fact that the Act provides for an unreasonable, un- 
just, unfair, and arbitrary classification, in that its pro- 
visions are made applicable to all employes of interstate 
common carriers by railroad, regardless of whether they 
are engaged in the hazardous employment incident to the 
railroad business, or not. 

I believe the Fifth Amendment is as broad along these 



lines as the Fourteenth Amendment, and to say that a 
clerk, male or female, employed by an interstate "com- 
mon carrier by railroad ' ' while engaged in clerical work 
in connection with an interstate shipment shall have the 
benefits of the extraordinary provisions of this extraor- 
dinary statute, and that the railroad company shall be 
subject to its burdens, and that another clerk, male or 
female, while doing similar work, but who is not employed 
by a "common carrier by railroad' ' shall not have its 
protection, and that the employer of such other clerk shall 
not be subject to its provisions, is class legislation of the 
most vicious character, and repugnant to the Constitu- 
tion. 

I hope that the gentlemen who will compose the com- 
mittee which is to be appointed by the Chair to report 
their conclusions and recommendations will not devote 
their energies altogether to the matter of the construc- 
tion of this Act, and to the matter of procedure, upon the 
assumption that its constitutionality is conceded ; but that 
they will exert their very best efforts in suggesting ways 
and means to secure a judicial decision against the con- 
stitutionality of the Act. 

Above all things, however, let us pull together. Let 
us take a stand and stick to it, and if it shall be decided 
to attack the constitutionality of the Act, let it be done 
with vigor, aggressiveness, determination. Let us assert 
every proposition with a positiveness that will carry con- 
viction ; let us not make a half-hearted, divided fight. ' ' In 
union there is strength." If some of us fight and others 
either lie down or merely acquiesce, it will make it easy 
for a court to decide against us, whereas if every man in 
this Conference goes to work with a determination to get 



284 

this Act declared unconstitutional, and loses no oppor- 
tunity to assail its constitutionality, success will more 
likely follow. In a doubtful, troublesome, complicated 
proposition, such as this, with a predisposition on the 
part of the court to hold an Act constitutional if a rea- 
sonable ground can be assigned for doing so, it has always 
occurred to me that it is a great solace to a judge to be 
able to say "even distinguished counsel who are inter- 
ested in having the Act declared unconstitutional are di- 
vided, are doubtful," etc. Let us not go into the solace 
business. 

If we can get it declared unconstitutional, and it again 
comes up in Congress, then it will be an easy matter to 
amend by eliminating the vague, indefinite, and uncertain 
provisions with which it abounds. The question of wheth- 
er the Act is exclusive, the question of whether the negli- 
gence mentioned in the Act is negligence which proxi- 
mately contributes to an injury, and the various and sun- 
dry other uncertainties and inconsistencies which have 
been pointed out in the discussion, can be cleared up ; and 
I fancy that even those Congressmen who are prone to 
"put their ears to the ground" and to cast every vote 
with an eye single to its political effect, would be willing, 
if we again succeed in getting it declared unconstitutional, 
to listen to proposed amendments calculated to simplify 
and harmonize the Act, and make it so plain that "he 
who runs may read." 

Failing, finally, in getting it declared unconstitutional 
(if we shall do so), there would seem to be nothing left 
for us to do but to resolve ourselves into a legislative 
committee and go to Washington and endeavor to cope 
with the lobby that has twice succeeded in dictating to 



28 5 

Congress the language of the bill, and has twice passed a 
bill as dictated, absolutely ignoring all sane amendments 
proposed. 

With some of the objectionable features eliminated, I 
should welcome an Act like this. I would rather have 
one boss than forty-odd bosses. I say this, notwithstand- 
ing I come from a Southern State and that I am far from 
being in favor of wiping out all State lines. In other 
words, I am not a "Teddy Bear," but I shall welcome 
the day when the Federal Government shall wipe out 
every vestige of State rights in connection with the regu- 
lation of interstate carriers. 

Mr. Cochran: As I understand the purpose of this 
meeting of counsel, it was to have a very free and full 
interchange of views and expression of opinions as to the 
various important questions which grow out of this Em- 
ployers' Liability Law. We all have in mind that which 
is embodied in the resolution offered by Judge Dickinson 
yesterday, and adopted by the unanimous vote of counsel 
present, that a committee shall be appointed to whom 
shall be referred all these questions, not only the legal 
questions, but questions as to the method of procedure, to 
the end that some final conclusion may be reached after a 
careful and analytical consideration of the matter and of 
the authorities bearing upon it. I had the honor to be a 
member of the old committee which considered the orig- 
inal Employers' Liability Act, and I can say for that 
committee that it gave to all the questions involved the 
most careful and painstaking examination; in fact, we 
endeavored to submit a report to counsel, which was, in 
effect, a brief in which authorities were fully cited, an- 
alyzed and construed, and every question carefully and 
thoughtfully discussed. 



286 

Of course, it goes without saying that the discussion 
which we have had here will be of very great value to the 
committee which is to be appointed. I assume that all 
that has been said will be put in print, so that the com- 
mittee and counsel may have the advantage of it, with the 
view of arriving at the definite conclusions to which I 
have referred. We have here the opinions of many gen- 
tlemen, not only upon the legal propositions involved, but 
also upon modes of practice. All of these matters will 
be carefully considered and analyzed, I doubt not, by the 
committee; and when the final report of that committee 
has been submitted, you will all agree that whether right 
or wrong in its ultimate conclusions, it has certainly given 
to the matter all the consideration which lawyers im- 
pressed with the importance of the questions involved 
could possibly give. I, personally, have been much im- 
pressed by many of the views expressed. I have arrived 
at no ultimate decision as to many of them, although I 
have very strong convictions as to the most important 
ones. 

Judge Humphrey and I, in talking matters over the 
other day, were discussing, for example, the matter as 
to how the question of the constitutionality of this law 
growing out of the fact of the classification attempted by 
Congress, had better be raised, and whether a direct at- 
tack upon the Act itself — again raising the question of 
its constitutionality — had better be made, or whether that 
question had better be raised in individual cases. That 
is to say, a man handling freight upon a platform, which 
freight is interstate in character, being shipped, say, from 
St. Louis to Omaha, is injured, and he is not engaged in 
extra-hazardous work, but he is simply a freight-man like 



287 

any other freight-man. Or he is a telegraph operator en- 
gaged in the handling of an interstate train, and while 
seated at his desk, the plaster falls on him from the ceil- 
ing and he is injured. In these and many other cases, it 
is manifest that the individual injured, while in a sense 
engaged in the handling of interstate commerce, is cer- 
tainly not such a person as ought to receive the benefits 
of this Act. 

Personally, I have no objection to this Act so far as 
it confers jurisdiction upon Federal courts, because I feel 
that all parties will then have justice administered with- 
out fear or favor. In saying that, however, I desire to 
say, and feel it my duty to say, that I know of no State 
court anywhere throughout the country, about which 
there can be as little complaint as the Supreme Court of 
Missouri, composed, as it is, of eminent judges and men 
who are absolutely fair and try at all times to do what 
is right. 

I remarked a few moments ago that Judge Humphrey 
and I discussed the question as to whether there ought 
to be an attack upon this Act as unconstitutional, because 
of its erroneous classification and because of a denial to 
the railroads of the equal protection of the laws, upon 
the assumption that the words "due process of law," 
as used in the Fifth Amendment, are equivalent to the 
words "equal protection of the laws/' and involve those 
words, or whether the attack should be made in individual 
cases as they arise. 

Take 4 the case of the freight handler I have suggested, 
who brings his suit. He claims all rights guaranteed by 
this Act of Congress. The defendant company offers to 
prove that he was guilty of gross negligence, contributing 



288 

to the injury. The court excludes the evidence, if you 
please. Exception is taken to the action of the court upon 
the ground that as to that individual, and under the con- 
ditions in which he was placed, the congressional Act is 
void. I am strongly of the impression that the higher 
courts would hold that the Act in such a case could not 
be invoked by the plaintiff for his benefit and that the 
company could plead contributory negligence as a bar to 
recovery. I believe that a substantial defense can be 
made in each such case where the facts show that the 
plaintiff was not at the time injured engaged in an extra- 
hazardous employment. I think the questions as to the 
constitutionality of this law as affected by the fact of no 
extra hazard in the employment are stated with great 
clearness and force in the most admirable letter of Mr. 
Hamilton, which is embodied in the record of this meet- 
ing. 

Whatever action we take, we want to take the wisest 
and the best. Among ourselves, we all know that it is 
likely to be a very difficult matter to secure a decision 
of the courts holding that this second Employers' Lia- 
bility Law is unconstitutional. The opinions in the How- 
ard case clearly indicate, I think, that the Supreme Court 
is favorable to a law of this character and would be indis- 
posed to hold the same void on constitutional grounds, be- 
cause some of its provisions apply to persons who are 
not engaged in an extra-hazardous employment. The 
question is whether we shall take the matter up upon that 
ground in a direct proceeding with the purpose' of chal- 
lenging the Act as unconstitutional, or whether we shall 
make the issue in the various cases that arise, not raising 
the question where the employment is extra-hazardous 



289 

in fact, but raising it in all cases where the employment 
is not extra-hazardons. 

There is a tendency, we all know, on the part of the 
courts, to sustain the constitutionality of an Act wherever 
it is possible to sever the section or clause that is said 
or shown to be unconstitutional from other sections or 
clauses that are constitutional. There is a tendency to 
sustain legislation as far as possible, even though hold- 
ing that certain provisions of an Act are unconstitutional, 
as for example, in Eeagan v. Trust Company, where the 
Supreme Court said, in substance, that even if certain sec- 
tions of the Act in controversy were unconstitutional, the 
balance of the Act would stand. 

The question of procedure in these various cases is a 
very important one ; but as it has been very fully discussed 
here, it is not necessary for me to dwell upon it. I feel 
very well convinced that there can not be two recoveries 
for the same cause of action allowed by the courts; and 
whether it be the Federal court by its injunctive remedy 
which controls the actions of the parties in the State 
courts, or whether it will be by taking both causes up 
through the State court to the Supreme Court of the 
United States and having an adjudication there, certainly 
it is true that in no event will there be an ultimate recov- 
ery where the cause of action is the same. I quite agree 
with Judge Wright in his conclusion in that matter. 

Now, if you will permit me, I would like to refer to 
another matter before I sit down. I think that counsel 
for the railroads can do nothing which will be of greater 
advantage to their companies than to provide for meet- 
ings like this for the purpose of discussing living, vital 
questions and with the view of reaching conclusions rep- 



290 

resenting the views of all. For many years I have been 
an advocate of that idea. I find our operating men have 
their organization for the purpose of interchanging views 
and discussing questions ; I find our traffic men have their 
organization ; I find our passenger men have their organi- 
zation. In fact, from top to bottom we find organization, 
because in organization there is strength. Only the legal 
departments of these companies have not been organized. 
We have not met together as we ought to have met, with 
the view of discussing these important questions. While 
we have been here together for three days, we have only 
been able to consider the questions arising under the Em- 
ployers' Liability Law. There are many other questions 
which ought to be considered and considered carefully. 
Take, for example, the Safety Appliance Law, which 
ought to have special consideration in view of the recent 
decision of the Supreme Court in the case of our com- 
pany, which went up from the State of Arkansas, known 
as the May Taylor case. Take the Hours of Service Law. 
I venture to say that if we got into a very full discussion 
of that Law, having in view the administrative ruling 
of the Interstate Commerce Commission in regard there- 
to, we would find a diversity of opinion among counsel 
and there would be a great deal of discussion before we 
could arrive at some conclusion that would be satisfactory 
to the minds of all. Take the Hepburn Law and the rul- 
ings of the Commission upon that Law, and the construc- 
tion which the Interstate Commerce Commission has 
given to that Law. 

I find there is a great difference of sentiment among 
lawyers, as I meet them, as to the various questions, and 
many of them are important, growing out of that Law. 



291 

We have not yet discussed those questions. They 
ought to be discussed. The thought I want to impress 
upon you is that there must be greater unity ; that we 
must stand more together. In the very nature of things, 
we do not get the proper decision in these cases where 
one eminent lawyer, from his standpoint, takes one view, 
and where another gentleman of equal eminence takes 
another view, and still another takes a still different view. 
We have been holding apart too much and not coming 
together. Eealizing the importance of the great questions 
at issue, questions which are brought up to us every day 
by managements that are striving and struggling to keep 
the heads of their properties above the waters threaten- 
ing to overwhelm them, it seems to me that we ought to 
arrange for some basis of more frequent conferences; 
we ought to have thorough organization. When I look 
into a man's eye and feel the pressure of his hand, I 
know the man very differently from the way in which I 
know the same individual if he writes me a letter and I 
write him in reply. There is a personal touch that cre- 
ates a unity of feeling and a unity of purpose, and a per- 
sonal regard, amounting oftentimes even to affection, 
which must be encouraged. If there is any profession in 
all the world where that sentiment should exist, it is in 
the profession of the law. We should meet together more 
frequently than we do. We should come together pre- 
pared to discuss all these questions in the calm, dignified, 
friendly and kindly way which has marked the discussion 
of the questions which have arisen at this Conference. 
We should appoint our committees and move forward as 
an unbroken column in defense of what we believe to be 
right. 



292 

We must always remember that in these matters it is 
not merely a question of a technical right, but it is the 
practical question as to how we can best accomplish any 
object. That is the thought we ought to have in mind. 
In determining those matters, we must consider condi- 
tions, surroundings, and circumstances. The best way to 
accomplish a result is what we need. In these times of 
fanaticism, when in so many cases legislative power has 
arrayed itself against the railroad interests of the coun- 
try; when we are burdened with all kinds of statutes 
the enforcement of which amounts practically to confisca- 
tion, it is, after all, to the legal departments that these 
companies must look for protection in the courts. 

One more word before I close (because I really had 
not intended to say anything to you at all, but I could 
not allow the occasion to pass without a few suggestions 
that were controlling my mind at the moment), and that 
is this: "We ought not merely to give our attention to 
the matter of the construction of laws after they have 
found their place upon the statute books, but we ought 
to strive together in every proper and legitimate way to 
prevent the enactment of these various laws, not only by 
Congress, but also by the States in which we, respectively, 
reside. I do not think enough attention in that respect 
has been given to these matters. 

There is present here to-day a gentleman for whom we 
all have the kindliest regard and respect, ex-Senator 
Faulkner, of Virginia, who, as counsel, represents in 
Washington a great many of the railroad companies of 
the country, and whose efforts have been zealous and un- 
tiring towards the defeat of the many fanatical and 
drastic measures which were introduced at the last Con- 



293 

gress and at previous Congresses. Not long before the 
last session adjourned, I received a letter from Mr. Faulk- 
ner, in which he spoke of this subject of unity of action 
to prevent the enactment of these laws. He is deeply im- 
pressed with the necessity of securing this unity. 

I had the honor to be a member of the committee that 
went to Washington to oppose the passage of the Em- 
ployers ' Liability Act, and while we could not succeed in 
securing all we wanted, I think I am not going too far 
in saying that the very earnest fight we made before the 
committees against the measure as then proposed, resulted 
in the enactment of a much less objectionable bill than 
would have passed if we had not made the opposition. I 
think the action of the committee which appeared in Wash- 
ington at that time, not only affected the Employers' 
Liability Act, but it had a beneficial effect, as Senator 
Faulkner was good enough to say to me, upon Congress- 
men, in relation to other pending measures, because it 
indicated a purpose on the part of the railroads to antag- 
onize this legislation in an open, fair, and reasonable way. 
We have heretofore let it go too much by default. 

What we need is organization, not merely of our legal 
departments, but also of our operating departments, and 
that organization will only be created through the influ- 
ence of counsel, who recognize its importance and who 
will act in unity in securing it. We have in the city of 
St. Louis hundreds of business men of prominence, who 
are opposed to all drastic and fanatical legislation, but 
as a rule they are not asked to express an opinion. If 
we would organize the same system that has been inaugu- 
rated by those advocating and pressing this legislation, 
and act in close unity with the men who represent the 



294 

material prosperity of the country in a business way, we, 
too, would be able to have our lawmakers advised by 
messages and letters from the business men and business 
organizations of the country, as to why these drastic meas- 
ures should not be passed, and how in their passage, not 
the railroads only but the whole country suffers. 

Organization is the foundation upon which we must 
build the success we are going to achieve in these mat- 
ters. If we can succeed in effecting an organization which 
will aid in preventing the enactment of all unjust and 
unfair laws, we will have to spend less time in determin- 
ing the true construction of such laws and method of pro- 
ceeding under them. 

Mr. Warfield: I would like to ask you a question. 
I was unavoidably absent during part of your recital as 
to the conversation you had with Judge Humphrey. Did 
you and he reach a definite conclusion as to whether it 
would be better to raise the question of the constitution- 
ality of the Act on the extra-hazardous branch of it, in 
the first case that arises, regardless of the fact that it 
did not involve that question directly, or that it would be 
better to wait until a case arose in which it was directly 
involved I 

Mr. Cochran: I do not desire to be understood as 
saying that Judge Humphrey and I reached an absolute 
or final conclusion, because we reserved that for the more 
full consideration of the committee which it was expected 
would be appointed as a result of this Conference, and 
we did not desire to foreclose ourselves by any casual 
conclusion which we might reach. But the thought in 
Judge Humphrey's mind and in my own was that we» 
should wait until we got a case where suit was brought 



295 

by some one against a railroad company under this Act, 
the plaintiff not being, at the time of the injury, in any 
hazardous employment, and then raise the question of 
the constitutionality of the Act on the basis of its classifi- 
cation. 

Mr. Warfield : Unless we so wait, it occurs to me the 
court might say that it would be time enough to decide 
that question when it arises. 

Mr. Cochran : Our thought was to raise the question 
in cases where it was manifest from the testimony that 
the party injured was not at the time engaged in extra- 
hazardous employment. 

Chairman Stone : We are very glad, indeed, to have 
had these remarks from Judge Cochran, and I hope they 
will be put in some tangible form, so far as he advocated 
the plan of organization among counsel of the different 
railroad companies. I, myself, have thought for a good 
while that such an organization ought to be formed and 
have periodical meetings, conferences and discussions of 
all these important questions growing out of recent legis- 
lation by Congress, and such legislation as will likely be 
enacted or offered in Congress for enactment hereafter. 

Mr. Neville: Before getting off that subject, and it 
is near our adjournment hour, after conference with some 
of the members who suggest a permanent organization 
of this Conference, I move now that a committee of five 
be appointed by the Chairman to report a basis of per- 
manent organization of the counsel of the various rail- 
roads, to be submitted for adoption by this Conference. 

The motion on being put was agreed to unanimously. 

Chairman Stone : I will announce the committee later 
during this Conference, if possible. I was going to state 



296 

that we have three other questions which open np for 
our consideration some very important matters growing 
out of the Hours of Service Law and the action of the 
Interstate Commerce Commission in requiring reports 
of the hours of service of employes of the different com- 
panies, taken March 3, 1908, and also the Safety Appli- 
ance Law. I think it appropriate at this time, as we 
have reached a happy climax to our morning session, that 
we adjourn until some hour this afternoon and consider 
these remaining questions, as well as close up some mat- 
ters of detail which I think it important to attend to be- 
fore we adjourn. 

Mr. Cary: Is it contemplated that this afternoon's 
session will be the last session? 

Chairman Stone : I think we can this afternoon com- 
plete everything we have to do. 

Mr. Harrison: There are a number of other ques- 
tions with relation to the General Managers' Association 
that are to be considered. 

Chairman Stone: They grow out of this Hours of 
Service Law that we still have to consider. 

Mr. Trabue : There was a suggestion made by Judge 
Dickinson to appoint a committee to discuss other ques- 
tions outside of the Employers' Liability Act. I move 
that such a committee be appointed. 

Chairman Stone : To make like report on these other 
matters ? — 

Mr. Trabue: Yes; I would submit several questions 
for their consideration. First, whether demurrage is 
covered by the Hepburn Bill, and whether or not the In- 
terstate Commerce Commission has duties concerning de- 
murrage similar to those concerning rates. That is a 



297 

question which had been regarded by a number of law- 
yers as settled, but I see the Pennsylvania Company 
seems to have taken a different view. 

Next, is a carrier indicted under the Safety Appliance 
Law guilty where its equipment is properly installed at 
the beginning of the journey and becomes defective pend- 
ing the journey and the carrier has not discovered, and 
has had no opportunity to discover, the defects, whether 
or not the Government must prove the carrier guilty 
beyond a reasonable doubt, the question having been de- 
termined favorably to the railroads on both propositions 
by Judge Evans in the case of United States v. Illinois 
Central Eailroad Company, and the affirmative of the 
first proposition having been held by the United States 
Circuit Court of Appeals for the Sixth Circuit in the 
Delk case, mentioned as one of the cases manifesting dif- 
ference of opinion on the circuit by the Supreme Court of 
the United States in the Taylor case. I think the cases 
are clearly distinguishable, because what was said by 
the Supreme Court in the Iron Mountain v. Taylor case, 
referred to by Judge Cochran, was said concerning the 
original condition of the equipment, shims having been 
used instead of the equipment required by the Act of 
Congress. 

Then, another very important question, it seems to 
me, is whether or not such provisions as Section 196 of 
our State Constitution, which forbid a common carrier 
to limit its common law liability, construed by our State 
courts, and doubtless others, to be applicable to interstate 
shipments, are now repealed by the Hepburn Law ; and if 
the Hepburn Law, as it would be construed by the Su- 
preme Court, and the Federal courts generally, on such 
questions, is controlling on that proposition. 



298 

There is a very interesting paper, as you are aware, 
given out by Commissioner Lane last May expounding 
the whole doctrine. 

Then, another very important question is whether or 
not that provision of the Hepburn Bill is constitutional, 
which holds the initial carrier liable for damage during 
the whole journey, whether the damage arises on the 
initial carrier's line or upon the line of some perhaps 
irresponsible line. 

Chairman Stone: You mean an irresponsible rail- 
road that is a common carrier? 

Mr. Trabue: Yes; of course, that is a question of 
no little importance to the initial carrier, for the law 
permits the Commission to require through routes and 
joint rates, and they require the initial carrier to 
make through rates over any lines that the Commission 
may see fit, ad finem, the statute -enforcing upon the initial 
carriers personal responsibility for damage throughout 
the whole route. 

Chairman Stone : I will offer this suggestion to Mr. 
Trabue. It seems to me that it will be entirely legitimate 
to discuss these matters when we take up the three re- 
maining questions on our program for this afternoon. 
Whether we shall refer them to the committee to be taken 
into consideration and reported on will be for the Con- 
ference to determine. 

Mr. Trabue : I am going to make that motion. 

Chairman Stone: Bring it up this afternoon. 

At this point a recess was taken until 3 o'clock p. m. 

July 15, 1908—3 p. m. 
The Conference was called to order by Chairman 
Stone. 



299 

Chairman Stone: I will make announcement of the 
committees I have the power to appoint. 

The first committee is the one proposed by Judge 
Dickinson, on which there are to be eleven members be- 
sides myself, ex officio, as chairman. I will name as 
those who are to constitute this committee: 

J. M. Dickinson, General Counsel, Illinois Central 
Eailroad Company, Chicago, 111. 

Edward D. Bobbins, Counsel, New York, New Haven 
& Hartford Railroad Company, New Haven Conn. 

Frederick W. Stevens, General Solicitor, Pere Mar- 
quette Railroad Company, Detroit, Mich. 

Alexander Hamilton, Vice-president and General 
Counsel, Atlantic Coast Line Railroad Company, 
Petersburg, Va. 

Alexander P. Humphrey, General Counsel, Southern 
Railway Company, Louisville, Ky. 

Robert J. Cary, General Attorney, Lake Shore & 
Michigan Southern Railway Co., Chicago, 111. 

Alexander G. Cochran, Vice-president and General 
Solicitor, Missouri Pacific System, St. Louis, Mo. 

George F. Brownell, Vice-president and General Solic- 
itor, Erie Railroad Company, 50 Church St., New 
York City. 

Gardiner Lathrop, General Solicitor, Atchison, Topeka 
& Sante Fe Railway System, Chicago, 111. 

James P. Helm, General Counsel, Louisville, Hender- 
son & St. Louis Railway Company, Louisville, Ky. 

Benjamin D. Warfield, District Attorney for Ken- 
tucky, Louisville & Nashville Railroad Company, 
Louisville, Ky. 

I want to say in explanation of the appointment of Mr. 
Warfield on this committee (making the selection of two of 
its members, including myself, from the Law Department 
of the Louisville & Nashville Railroad Company) that 
I recognize that he has peculiar fitness for the discharge 
of the duties that will be incumbent upon a member of 



3oo 

this committee, because he has made the matter a study 
for some time and has taken an active part, both in oppo- 
sition to the original Bill and in opposition to the present 
Bill, before congressional committees having these bills 
under consideration. For these reasons, and believing 
that he will be very helpful to the other members of the 
committee, he has been appointed. 

"With respect to the Committee on Organization of 
Counsel for Eailroad Companies, to be composed of five 
members (although Judge Neville made the motion, 
Judge Cochran made the suggestion), I will, with the 
permission of Judge Neville, appoint : 

Alexander G. Cochran, Vice-president and General 
Solicitor, Missouri Pacific System, St. Louis, Mo., 
Chairman of the committee. 

Mr. Cochran : If I am going to serve on that Commit- 
tee, I hope you will excuse me from the other, because 
we will have our hands full in this one, and I think it 
will be better. 

Chairman Stone: I do not think the duties of the 
Committee of Five will conflict seriously with the duties 
of the other committee, and it is better to have you on 
this. 

I will appoint on the Committee on Organization, to 
be composed of five members, the following gentlemen : 

Alexander G. Cochran, Vice-president and General 
Solicitor, Missouri Pacific System, St. Louis, Mo. 

James H. Neville, General Counsel, Gulf & Ship Island 
Eailroad Company, Gulfport, Miss. 

George F. Brownell, Vice-president and General Solic- 
itor, Erie Eailroad Company, 50 Church St., New 
York City. 



301 

Alexander P. Humphrey, General Counsel, Southern 

Railway Company, Louisville, Ky. 
Robert J. Cary, General Attorney, Lake Shore & 

Michigan Southern Railway Company, Chicago, 111. 

In the matter of organization, three of the gentlemen 
are now here and constitute a quorum. If they want to 
take any action and report to this Conference before 
leaving here, they will have an opportunity to do so. 
These gentlemen have taken an interest in organizing the 
railroad attorneys, and for that reason I have named 
them. 

Now, we will leave the Employers' Liability Act, for 
the present, unless there is some suggestion of importance 
pertaining to that Act, that has been overlooked, and 
go to the discussion of some other questions growing out 
of other Acts of Congress affecting interstate railroad 
carriers. 

Mr. Helm: I want to make certain suggestions to 
the Conference on the question of this Employers' Lia- 
bility Act, to the end that they may consider them. I 
think they are worthy of consideration. It may seem 
strange to make them so late in the Conference, but I 
do not think it is ever too late to make suggestions that 
are worthy of consideration, and whether or not they are 
will be for the Conference to decide. 

I have been considering just what we would accomplish 
if we won the points concerning which we have nominally 
been brought together to consider ways of winning. We 
are not here to win points or advise methods by which 
they can be won, but we are here to wisely consider cer- 
tain great interests that have been entrusted to us, and 
therefore what we want to accomplish is how we can best 
subserve those interests. 



302 

Now, I want to briefly consider what our position will 
be, assuming success, or partial success. If we succeed 
in getting the Supreme Court to hold that Congress has 
not the power to regulate the relation between master 
and servant, then we shall have succeeded in holding for 
the State court all of that jurisdiction. If we succeed in 
getting the Supreme Court to hold that the Act is void 
for lack of proper classification, then what we accomplish 
is that we save to the State court jurisdiction so much 
as we shave off of the Federal jurisdiction. If Congress 
should be discouraged by having the second Act held in- 
valid and not pass another law, we should simply have 
saved the jurisdiction for the State courts. If Congress 
should pass a law recognizing the proper classification, 
and put only the extra-hazardous class together, then 
we shall have saved to the State courts the jurisdic- 
tion of the remainder of the cases. 

Now, we are here as men of affairs, as men who have 
a capacity to look beyond the particular moment. I be- 
lieve I do but voice the inward feeling of every person 
here when I say that in my judgment the State legisla- 
tures, without any exception (I doubt if there be any 
exception at all), within a few years, following the ex- 
ample of Congress, will eliminate the defenses of fellow- 
servant, assumed risk and contributory negligence. I 
believe they will go further, and in the nomenclature of 
the sporting fraternity, go Congress many points better; 
we shall have much more drastic legislation. 

The question, therefore, for us to consider, is whether, 
assuming this Act to be exclusive, as we seem to have 
determined it is, it is better to have this large class of 
cases involved in suits by employes or employers, admin- 



303 

istered in the Federal courts or in the State courts 
under the present legislation of the States and perhaps 
under very much more drastic legislation to be enacted. 
It does seem to me that that is worthy of consideration 
and that perhaps we are fighting for something for which 
we ought not to fight. In other words, do we want to 
fight against the Federal jurisdiction, and fight to 
save the State courts' jurisdiction, or as much of it 
as we can, or should we welcome the chance to seek 
the Federal forum! It seems to me that is something that 
is worthy of being considered most carefully, and to 
the end that it may be so considered, and believing that 
the committee would be embarrassed to originate the sug- 
gestion when the matter goes to the committee under 
practically different instructions, I move that the ques- 
tions of policy as to whether we shall make the fight 
and endeavor to win these points before the Supreme 
Court, and thus save the State courts' jurisdiction, shall 
be considered by the committee to which this matter has 
been referred, and that they shall make such recommenda- 
tions as in their judgment shall seem wise. 

Mr. Rosser : I want to second that motion. I am as 
sure as I am of anything that the State legislatures are 
trending in the direction suggested by Mr. Helm. We 
have, in Georgia, abolished the fellow-servant doctrine. 
An employe, if not himself at fault, can recover, even 
if his injuries are the result of the negligence of a fellow- 
servant, and practically employes are found by juries 
not to be in fault. All you have to do is to show that 
the common carrier is at fault, and it follows, as night the 
day, that the employe is not at fault. The abolition of 
assumed risks, contributory negligence, and the like, is 



304 

now being advocated in our Legislature ; and but for the 
late political mishap in our State radical changes in the 
law might have been already accomplished. The growing 
tendency of State legislatures is to adopt the late English 
Act in so far as it gives to every injured person the 
right to recover, and at the same time rejecting the terms 
of that Act so far as it limits the amount of recovery. 
Legislation along that line is speedily coming. Even 
Congress may legislate along the same line, so far as it 
has jurisdiction. It was suggested by Mr. Bobbins yes- 
terday, in reply to a statement I made, that may be a 
party would get control of the Government that would 
ruin us. Surely, that might happen. It has already al- 
most happened in some of the States and may happen in 
others, but it is less likely to happen in the United States 
than in one or more of the individual States. As I said, 
the States want the English Act, so far at least as it 
bears heavily upon the common carrier, and sooner or 
later they mean to have it. If the present advance in 
State legislation is maintained, it will be but a little 
while before for every injury there will follow a recov- 
ery, without regard to the question of negligence or no 
negligence. He only who wilfully hurts himself will be 
denied a recovery. Against such a movement as this, 
it seems to me the part of wisdom is to welcome, as far 
as possible, the control of the Federal Government. 

I have a profound conviction that the learned lawyer 
who aids in declaring this Act unconstitutional is an 
enemy of every railroad in the United States. It does not 
bear so heavily upon the railroads as do many of the 
present State Acts, and will be a refuge against the most 
radical State legislation that we may reasonably expect 



3°5 

in the near future. Trials under it will certainly not 
be more costly than trials in State courts under State 
Acts. Federal courts will be at least as far removed from 
local coloring as will State courts, and Federal juries will 
be as far away from local prejudice and influence as will 
State juries. 

Mr. Hamilton: I would like to hear the resolution 
offered by Mr. Helm. 

Mr. Helm: It was that the question be referred to 
the committee to consider whether it was to the real 
advantage of the railroad companies to raise these ques- 
tions, which involve the validity of this Act and thereby 
save as much jurisdiction as possible to the State courts, 
or whether to leave to the Federal courts, so far as we 
have any influence over it, the limit of jurisdiction given 
under this Act. 

Mr. Hamilton: Is it your idea to make it obligatory 
upon the committee to consider it and report! 

Mr. Helm: No. 

Mr. Hamilton: I think the scope of the committee 
is large enough to do it. If the committee deems it wise, 
I suppose it will make such a report. 

Mr. Helm: I was afraid the committee might feel 
some hesitation when everything, so far, has tended in 
a certain direction to accomplish the overthrow of this 
Act in the Supreme Court. 

Mr. Hamilton: I do not think that anything has 
authoritatively been determined by this Conference. We 
have simply expressed our views, after hasty considera- 
tion, upon various questions that have arisen. As I un- 
derstand, the committee is to consider all matters in con- 
nection with this Act and make any recommendation on 



3 o6 

any matter that can be maintained and is wise. I do not 
think it is wise to say, "you are to make a report on such 
and such a matter. ' ' We might say it, but I do not think 
it would be wise. 

Chairman Stone : Restate your motion, so that the 
members who have been out may understand it. 

Mr. Helm: If you will allow me, for the benefit of 
those who were out, I will briefly state the points which 
led up to the motion. I say that if we succeed in getting 
the Supreme Court to hold that Congress has not the 
power to regulate the relation between master and serv- 
ant, we simply thereby save the complete jurisdiction to 
the State court. If we accomplish the same thing with 
relation to the classification idea, then we accomplish the 
same result: we leave the whole jurisdiction to the State 
courts. If we get the Supreme Court to limit the Act, 
or if Congress should subsequently limit it by embracing 
in one class only the "extra-hazardous risks," we save 
the jurisdiction of the State courts for the remainder 
of the cases. 

Now, I say, assuming that the legislatures of many 
States will very soon (probably within a year or two) 
eliminate the defenses of contributory negligence, as- 
sumed risk and fellow-servant, and perhaps do a great 
deal worse, or indulge in a great deal more drastic legis- 
lation than Congress could be induced to pass, is it wise 
at this time to try to overthrow this Act in the Supreme 
Court and thereby save as much as we can of State juris- 
diction, or should we, on the other hand, simply let the 
Act remain where it is, without these contests, and make 
our fight, if we have to make a fight, to save the Federal 
jurisdiction? 



To the end that that question may come up sharply 
and distinctly, in case the committee should feel some 
hesitation in originating that thought, which is counter 
to all that has been said before, I proposed that we resolve 
that it be submitted to the committee for such recom- 
mendation as they may see fit to make, as to what is 
the right policy: whether we should continue in our ef- 
forts to overthrow the Act or whether we should accept 
the Act and save as much jurisdiction as we can for the 
Federal court. 

Mr. Helm's motion was not agreed to. 

Chairman Stone: In line with what we were dis- 
cussing just before lunch, I want to read some very ap- 
propriate suggestions made by Mr. Theodore W. Eeath, 
General Solicitor of the Norfolk & Western Railway Com- 
pany. Having to go away yesterday afternoon, he has 
written to me, and with the indulgence of the Conference 
I will read his suggestions : 

The first section of the Act of Congress of 22nd 
April, 1908, provides in case of death that the ac- 
tion shall be for the benefit of the widow, husband 
and children, and if none, the parents, and if none 
then for the next of kin "dependent upon such em- 
ploye." The other sections giving a remedy for 
death similarly limit the action to those relatives 
necessarily in part or wholly dependent or to depend- 
ent kin only. 

Therefore, if the Act should be sustained as con- 
stitutional, and if — as I hope and believe — the Act 
will be held exclusive of all other remedies as to a 
death in interstate commerce, there will be marked 
advantage in many jurisdictions to be gained by the 
carriers under the Act over existing provisions of 
law. For instance, in the two Virginias at present 
many speculative death suits are maintained by the 
county . sheriff administering upon the estate of an 



3 o8 

employe who lias been killed in the service without 
leaving immediate family or dependent kin. Such 
suits too frequently are in the charge of speculative 
counsel and counsel are often the sole real parties 
in interest. If the Act is constitutional and is ex- 
clusive, this class of suits will be entirely eliminated. 

Of course, I know that in some States the form 
of Lord Campbell's Act is similar to the Employers' 
Liability Act of 22nd April, 1908, in this particular, 
but a marked advantage will be gained from that 
Act if constitutional and exclusive in jurisdictions 
where, as in Virginia, existing provisions of law per- 
mit a recovery for a death without regard to the ex- 
istence of dependent relatives or kin. 

Arising out of this suggestion comes the question 
of how the point is likely to be presented. 

(a) A suit may be begun, either in a State or 
in a Federal court, alleging a negligent injury of a 
servant while employed in interstate commerce, but 
the declaration may not plead the existence of a 
widow, husband, children, parents or dependent kin. 
In such a case the point doubtless should be made by 
demurrer to the declaration for that the declaration 
does not disclose the existence of beneficiaries under 
the statute, the statute being exclusive. 

(b) A suit may be begun, containing all the nec- 
essary pleadings on this point, but the proof may fail, 
and in this event the point should be made by demur- 
rer to evidence, by motion for nonsuit, by request 
for a point for charge or instruction to the jury, 
or in such other way at the trial as may be appro- 
priate under the practice of the State where the ques- 
tion arises. 

(c) This point properly made in the above or 
some other way at the inception of a case in the 
State court or at the earliest time practicable would, 
if overruled, give access to the Supreme Court of the 
United States on error to the court of last resort of 
the State. 

The next proposition which invites discussion is Ques- 
tion 19, which reads as follows: 



309 

19 Is the Hours of Service Law constitutional 
and what is its proper construction? 

Does anybody want to be heard on that question? 
Mr. Helm: We have now a couple of hours or less 
left before we finally adjourn, because, as I understand 
it, we are going to adjourn this afternoon. I do not be- 
lieve it is within the range of possibility that we can 
exchange views on these very important questions in this 
hasty manner with any advantage. I think it would there- 
fore be wiser to appoint the committee provided for in 
Mr. Trabue's motion to consider these several questions 
and let that committee submit to us its deliberate views, 
and I would add to Mr. Trabue's motion, if he will allow 
me, this thought : that any lawyer who wishes to can send 
his views on any particular question to the chairman of 
that committee for the purpose of having them consid- 
ered by the committee. 

Mr. Trabue: I accept that amendment. 

Chairman Stone: It seems to me, while there are 
so many of us here that have had this matter brought 
to our attention, that it would be well enough to occupy 
the time that we do have in some discussion of this Act, 
either as to its constitutionality or as to the construction 
that should properly be given to some or all of its pro- 
visions. 

Mr. Cary: Wasn't it understood that Questions 19 
and 20 should be considered together? 

Chairman Stone : Yes ; 19 and 20 are to be considered 
together. Question 20 reads thus : 

20. Has the Interstate Commerce Commission 
power to require monthly reports under the Hours 
of Service Law as provided in its circular of March 
3, 1908? 



3ip 

Questions 19 and 20 pertain to the Hours of Service 
Law. The circular referred to requires each carrier to 
make a monthly report as to the number of employes com- 
ing within the purview of this Act known as the Hours 
of Service Law, and to State the number of hours they 
are on duty, giving exact capacity in which each is em- 
ployed, his locality, and the name and post office address 
of each employe, whether a trainman, conductor, engineer, 
fireman, switchman, etc., and if an operator whether he 
is a dispatcher or ordinary operator. 

There is one provision of this Act to which I wish 
to call attention, and I would be glad to have the views 
of those present if I can obtain them. I think it is of 
great importance to have a proper construction of it. 
In Section 2 there is this proviso : 

That no operator, train dispatcher, or other em- 
ployee who by the use of the telegraph or telephone 
dispatches reports, transmits, receives, or delivers 
orders pertaining to or affecting train movements 
shall be required or permitted to be or remain on 
duty for a longer period than nine hours in any 
twenty-four-hour period in all towers, offices, places 
and stations continuously operated night and day, 
nor for a longer period than thirteen hours in all 
towers, offices, places and stations operated only dur- 
ing the daytime, except in case of emergency, when 
the employees named in this proviso may be permit- 
ted to be and remain on duty for four additional 
hours in a twenty-four-hour period on not exceeding 
three days in any week. 

The Commission, in their circular letter or ruling of 
March 16, 1908, place a construction on that provision, 
in which they state: 

The Commission interprets the phrase " continu- 
ously operated night and day" as applying to all 



3ii 

offices, places, and stations operated (Juring a por- 
tion of the day and a portion of the night, a total 
of more than thirteen hours. 

They state in the same circular: 

The phrase "operated only during the daytime " % 
refers to stations which are operated not to exceed 
thirteen hours in a twenty-four-hour period, and is 
not considered as meaning' that the operator thereat 
may be employed only during the daytime. 

This is the construction that the Commission has 
placed on this Act and concerning which I should like 
to have the views of those present, and especially con- 
cerning the phrase "continuously operated night and 
day." 

Some general counsel have reached the conclusion that 
that clause means an office where there is no cessation in 
the hours for the discharge of the duties of the operator ; 
where it is kept open the entire twenty-four hours. The 
phrase "continuously operated" means, they claim, what 
it says, the whole twenty-four hours, and that the car- 
rier may very well take itself out from under that provi- 
sion of the Act by closing its office for an appreciable 
period (for one hour or two hours, or any other period 
in the twenty-four hours) when no service by the operator 
in charge affecting train movements will be performed, 
and that the Act would be complied with, and it would 
not be necessary where the office was kept in that way, 
to confine the hours of service of the operator to nine 
hours, but, under the ruling of the Commission, any office 
kept open more than thirteen hours is a "night and day" 
office and requires the enforcement of this statute and 
two operators in such an office. If it is kept open more 



312 

than eighteen hours this Act, according to the construc- 
tion put upon it by the Commission, requires three opera- 
tors in that office, so that none shall serve longer than 
nine hours. 

Another important question growing out of this Act 
has occurred in the management of the company I repre- 
sent. It is whether or not an operator who has performed, 
say nine hours, or thirteen hours, or any other number 
of hours, of duty, coming under the provisions of this 
statute as an operator in train movements, can be em- 
ployed in any other duty as an agent (clerical duties), 
outside of his duties as an operator, without violating 
the law. 

I do not know how many companies are acting upon 
the views of some general counsel who have reached the 
conclusion I have presented, but undoubtedly some of 
them are acting under that advice. A large number are 
not ; they are conforming to this rule of the Commission. 

There is quite a number of questions presented in the 
circular letter referred to by Mr. Brewster, which all 
the members have had before them during the sessions 
of this Conference, arising under the same Act which pre- 
sents other matters that I think important to be discussed. 
They ought to be considered at this Conference if it can 
be done. 

Mr. Neville: May I, on this question, ask you with 
reference to the construction of the Commission in respect 
to the Hours of Service Law, as applied to your road, 
a matter that I have heard was true, though I do not 
know whether it is. As I understand it, your road, the 
L. & N. road, in my section of the country has a train 
which leaves Mobile at 7 :30 in the morning and reaches 



313 

New Orleans at possibly 11 or 12 (around that hour) 
and, returning, leaves New Orleans at 4 or 5 and reaches 
Mobile at 9 or 10 at night (I am not certain about the 
•exact time) ; between the time the train leaves Mobile and 
the time it returns, it puts the employes beyond the hours 
that they are required to serve on the train. My informa- 
tion was that the Commission had held that in cases of 
that sort the hours that they were not employed (for in- 
stance in New Orleans, when they were waiting for their 
return) were not to be counted, and that it was only the 
actual hours they were engaged in service that were to be 
counted. I do not know whether that has been formally 
held by the Commission, but I was informed that it was 
as applied to that train of the L. & N. road. 

Chairman Stone: The fore part of Section 2 of this 
Act reads this way : 

Sec. 2. That it shall be unlawful for any com- 
mon carrier, its officers or agents, subject to this 
Act, to require or permit any employee subject to 
this Act to be or remain on duty for a longer period 
than sixteen consecutive hours, and whenever any 
such employee of such common carrier shall have 
been continuously on duty for sixteen hours he shall 
be relieved and not required or permitted again to 
go on duty until he has had at least ten consecutive 
hours off duty ; and no such employee who has been 
on duty sixteen hours in the aggregate in any 
twenty-four-hour period shall be required or permit- 
ted to continue or again go on duty without having 
had at least eight consecutive hours off duty. 

Now, I do not remember that the Interstate Com- 
merce Commission has made any ruling on the manner 
in which our employes in train service should perform 
service between Mobile and New Orleans. It has not 
come to my notice if such is the case. It may have been 



3<4 

a matter occurring between our operating department 
and the Commission. 

Mr. Brewster: There is a suggestion that this Con- 
ference adjourn this evening. This circular letter comes 
from the Chairman of the General Managers' Association 
of the Southeast, which embraces possibly all the roads 
in the South. This is a pressing matter, because this 
General Managers are in a position where they must act 
under this statute now. They are doing it every day now, 
their action being either in violation of, or in accordance 
with, this ruling. 

Many of these companies are represented here now 
and it is important that the railroads act in concert and 
adopt some policy, some construction, that all will follow, 
because if they start out with one road adopting one 
construction and another road adopting another construc- 
tion, the matter will get into great confusion. It does 
seem to me that we ought, if possible, to give these people 
some instruction as to what the views of this Conference 
are in reference to this matter. I think it is a matter 
that we ought to be in a position to give some advice 
about, before we adjourn, because it is a matter that is 
being acted upon now, everyday. 

Mr. Harrison: In view of what Mr. Brewster has 
said, I move we proceed to consider, seriatim, the several 
questions submitted by the General Managers Association 
of the Southeast, or, at least, that we go as far as we 
can in considering them. 

Chairman Stone: We are considering them right 
now, and we ought to remain here long enough to reach 
some consensus of opinion on the main points. 

Mr. Helm : The importance of these questions fright- 



3*5 

ens me. Unless some of us are better prepared on these 
questions than I confess myself to be, I should think we 
would be afraid to give opinions which would be acted 
upon with confidence by the executive departments of our 
railroads. As far as I am concerned, I think they are 
very important. I think if we could, without injury to 
our interests, adjourn until some time about the first of 
August, and then meet here or somewhere else, it would 
be wise, so that in the meantime we could carefully con- 
sider these questions, and that our advice would be worth 
much more than it would be off-hand. I admit we ought 
to do something; but the state of unpreparedness on my 
part frightens me. 

Mr. Xeville : I concur with Judge Helm in his posi- 
tion. I would like very much to have the matter dis- 
cussed, because I am in a position where I need advice 
about it, 

After the Commission had issued its circular of March 
3, 1908, the management of my road asked me whether 
they should observe this administrative ruling of the 
Commission, and I told them that I did not think they 
ought to do it ; that is, about making the reports for the 
month of April. I then hoped that the road which I rep- 
resent, being entirely intrastate and no man in its em- 
ploy ever going out of the State, would come under the 
ruling, though it is true that eighty-five per cent of our 
business was interstate. So I advised them not to regard 
it, and about the first of May, I think it was, they called 
upon the railroad for a report for the month of April. 
Of course, I had to bear the burden of it, as I had given 
them the advice not to make it, and then the Commission, 
through Mr. Moseley, addressed a letter to us to know 



3i6 

why it had not been observed, and they were extremely 
anxious to know whether we meant any contempt by not 
doing it. I then went to see them abont it, and they gave 
me very little comfort, except to say that our road was 
especially one required to make these reports, and that 
they must be made. So I reconsidered my advice and 
advised them that they had better make the report as soon 
as they could. So the day before I left, they had a com- 
munication from the secretary, which the manager 
brought down to me, saying that they had not been satis- 
factorily answered about that April report, and it looked 
like they were going to do something about it. It looks 
to me as if I am already in jail, and I would like very 
much to hear what my brethren have to say about it to 
help me out of the condition into which I have got my 
road. After being here and listening to the arguments, I 
am thoroughly satisfied that I was wrong in my past ad- 
vice. As our friend John Allen said, after he had made 
a tariff speech, "It was subject to review, alteration, and 
change. " My advice was not given in that regard, but I 
had to change it. 

I really think, as Colonel Helm does, that it is a matter 
of great importance. Of course, I will have to answer 
the best way I can. The questions were not formulated 
and quite a number of members of the Conference have 
left, and I think it would be better, and we would get 
better results, if these matters were referred to this com- 
mittee and another meeting called in August or Sep- 
tember. I hope it will be as early in August as possible. 

Mr. Helm : That is my idea about the matter as it at 
present stands. I think we can best serve our people if 
we be given two weeks to go over these questions, with 



3i7 

the authorities, and then meet again on the first of 
August at Hot Springs, Virginia. But let us, when we 
give our advice, not give such advice as would embarrass 
us, if, when it was accepted, we got our clients in trouble. 

Mr. Neville: Just as I am. 

Mr. Hamilton: Hasn't the committee been appointed 
to consider this matter? 

Chairman Stone : Not yet. 

Mr. Hamilton : Didn 't that second committee of five 
have that matter in charge ? 

Chairman Stone: No, sir. That committee was the 
Committee on Organization. 

Mr. Hamilton: Then, I heartily second the view of 
Mr. Helm. Unless we have somebody here who has 
studied this subject and knows it thoroughly, I do not 
think that the opinion of any one of us would be worth 
much. I do not see how we can get the thing in any better 
shape than to refer it to that committee, and then let 
them report as soon as they can. 

Chairman Stone: Didn't the call for this Conference 
embrace this subject as well as the Employers' Liability 
Act? 

Mr. Hamilton : Yes ; but only a few people considered 
it with any care. I am like Mr. Helm. I do not think 
the view of a man, ordinarily, who has not studied the 
subject, will be worth much. If there is anybody here 
who has studied it, he will confer a favor on us by telling 
us what he thinks about it. 

Mr. Cochran: I do not know that I can say that I 
have very carefully considered the question, but the mat- 
ter has been up with our management and I have given 
some little consideration to it. 



3i* 

The Interstate Commerce Commission issued this cir- 
(3ular to which reference has been made, and accompanied 
the circular by certain forms. 

Chairman Stone: Yon are speaking of the circular 
referring to the requirement of the reports? 

Mr. Cochran: I am referring to the circular concern- 
ing employes; these monthly reports that have been re- 
ferred to. The forms furnished were quite elaborate and 
demanded a great deal of information. It occasioned the 
management of my company some concern, because it 
would involve a large expense to maintain the clerical and 
other organization necessary to secure the data and make 
the statements required. The forms furnished, as I have 
said, covered a great many things, even the post-office 
addresses of the employes whose names were required. 
The matter was referred to me for advice, and I took it 
up with Mr. Clardy, who attends more particularly to 
our interstate commerce matters, and we discussed the 
matter at some length. In the meantime, my manage- 
ment had gone on and made out the schedules for the 
first month, and then came again and wanted to know 
whether or not they should be filed. Just at that moment 
I received a message from Mr. Brooks, General Counsel 
for the Pennsylvania Lines West of Pittsburgh, and loca- 
ted at Pittsburgh, in which he said that an application had 
been made by some of the eastern trunk lines to the Inter- 
state Commerce Commission for a rehearing of this whole 
matter, with the view of rescinding the order which had 
been made in connection with these reports, and Mr. 
Brooks rather urgently suggested that we hold up any 
report until a decision of the question of rehearing by 
the Commission. I thereupon asked my management to 



3*9 

withhold the report, which they did, and the matter re- 
mained in that condition for some little time. I happened 
to be over in Chicago on some other business, and the 
General Solicitor of one of the leading lines there advised 
me that upon the receipt of a similar communication from 
Mr. Brooks, the Chicago lines had taken the matter up 
and discussed it fully, and they had concluded, upon the 
whole, that it would be better and safer to make the re- 
ports, and had acted on that conclusion. 

Still, I did not advise my management on the subject 
when I returned home, but very recently I wired Mr. 
Brooks, calling attention to his previous message, and 
asking him what the Interstate Commerce Commission 
had done on the motion for rehearing and what the trunk 
lines proposed to do, and I got a letter from him that 
the application for a rehearing had been overruled, and 
that they were about to file bills to restrain the Commis- 
sion as to any penalties, and to contest the validity of 
the order in the courts. 

I presume that by this time these bills have been filed 
in court, or, if not, they certainly will be filed within a 
very few days, and the matter then will become one for 
the courts to determine. 

The law as to hours of labor gives, in one of its pro- 
visions, to the Commission, as we know, general powers 
in connection with the matter, that are bestowed upon it 
by the Hepburn Law in regard to other matters regulated 
by the Hepburn Law. It seemed to me that there was a 
question as to whether the officers of railroad companies 
could be required to furnish, under oath, information 
upon which proceedings by indictment might afterwards 
be predicated. 



320 

To set forth at length the number of men who have 
been worked beyond the time specified in the Act, would 
be a confession, under oath, that in some cases the law 
had not been observed. 

Mr. Harrison: Have you made that report? 

Mr. Cochran : Yes. I was going to say that as soon 
as I ascertained that all the Chicago roads — is that right, 
Mr. Cary? 

Mr. Cary: No; except the New York Central lines. 
We are in the same position as the Pennsylvania. 

Mr. Cochran: "With that exception. I understood 
that all the Chicago lines had made the report. 

Mr. Cary: I think the Western lines have made re- 
ports. 

Mr. Cochran : When I found the question was about 
to be contested in the courts by the Pennsylvania lines,, 
and when I learned all the roads I could find out about r 
the Chicago roads and most of the roads centering in St. 
Louis, had made the report, I advised our General Man- 
ager, Mr. Sullivan, he had better forward his reports for 
that month, and continue to forward them until the courts 
decided, if they shall so decide, that the report need not 
be made. 

Mr. Cary : In regard to the New York Central lines 
(in fact, just before I left Chicago), we received a tele- 
gram from Mr. Harris, the Vice-President in charge of 
the Legal Department of the New York Central lines. We 
had first been instructed to make the reports. We then 
received a telegram to please hold the matter in abeyance 
until he could further advise us as to what was to be 
determined by a conference of New York counsel. I un- 
derstood that the railroad counsel of New York have been 



3 21 

considering the matter, and, as Judge Cochran has said, 
are contemplating filing a bill or bills for the purpose of 
testing the power of the commission to make such admin- 
istrative order; and, meanwhile, so far as the New York 
Central lines are concerned, I understand we are follow- 
ing in the steps of the Pennsylvania and awaiting further 
instructions. 

Apropos of the same thing, this morning Mr. Stevens 
showed me a reply that he had received from one of the 
members of the Commission (I do not remember which 
one it was) in response to a letter he had written, either 
to Mr. Moseley, the Secretary of the Commission, or to 
the Commission, making inquiry as to whether the officer 
or agent of the corporation which made the reports under 
the administrative order of the Commission, would be 
exempt from prosecution in case there was prosecution 
of any kind. The letter which he received in reply was 
rather evasive. It did not answer his question. It stated 
that reports were to be turned in after all by the cor- 
poration, and he said he did not think they wished to 
recognize any individual acting for the corporation, but 
they would look upon it as a report of the corporation, 
thereby attempting to bring the corporation within the 
interpretation of the Fifth Amendment of the Constitu- 
tion, to the effect that the corporation is not entitled to 
the same immunity that individuals are, according to the 
recent decision of the Supreme Court of the United 
States. I would therefore think that that will be the 
position they will take when it comes to the question of 
immunity. 

With regard to the committee which I understand is 
to be appointed to consider this subject, I think it might 



322 

be well to make this suggestion to them: Does not this 
administrative ruling fall within the class of all adminis- 
trative rulings which this Commission seems to be mak- 
ing, without any apparent specific authority of law to do 
so! I hope the committee, in considering the constitu- 
tionality of orders of this kind, will consider it from the 
fundamental phase. I can not understand where this 
Commission has got the power to arbitrarily make rules 
which it regards as the dividing line between compliance 
with the law and non-compliance with the law, so far as 
the Interstate Commerce Law is concerned and so far as 
this law is concerned, and perhaps other laws, when there 
is nothing in the Acts which gives them a guide to show 
which is on the right side of the fence and which is on 
the wrong side of the fence. In the great majority of 
instances, each case will have to depend upon its own 
peculiar state of facts. Yet they have virtually done this : 
they have made rules as to what evidence shall be con- 
sidered conclusive of a violation of the Act and as to 
what evidence shall not be considered conclusive of a vio- 
lation of the Act. That seems to me to be judge-made 
law, they acting, not only as legislature, but also as jurist, 
and determining our rights in advance. 

Take this administrative order with regard to the 
number of hours that shall constitute a day station and 
the number of hours that shall constitute a day and night 
station. I have been of opinion that it would be substan- 
tially an evasion of the law to close an office one hour in 
twenty-four and say it was not operated continuously 
day and night. The basis for that conclusion, I think, is 
this : that we must look at the spirit of the law to deter- 
mine what was intended. But notwithstanding that con- 



323 

elusion, I do not think I am able to say, or that anyone is 
able to say, exactly how many hours' operation shall 
constitute a day station and how many hours' operation 
shall create a day and night station. I think that is like 
any proposition that might have to be put up to a court 
to be passed upon, and is to be based upon surrounding 
circumstances and facts. It is a substantial compliance 
with the law, it is the spirit of the law, we are after. 

I therefore think that it is beyond the power of the 
Commission to lay down in any administrative order, a 
rule which is the same as a statutory rule, which will 
convict railroads if they are on one side of it, and acquit 
them if they are on the other side of it. I do not believe 
it is possible for them to make administrative rulings of 
that kind, even though they can make general adminis- 
trative rulings. 

I hope the committee will consider that phase. It is 
simply made as a suggestion. 

Chairman Stone: I wish to say for the information 
of those present, that after attending, at Chicago, a con- 
ference of a number of the lines interested in this matter, 
it seemed to be the opinion of most of the general counsel 
attending that conference, some time in April, as I recol- 
lect, that it would do no good to refuse to comply with 
this administrative ruling and refuse to file these re- 
ports. If the Commission did not get the information 
through our own reports, they would send out inspectors 
and examiners and get it any way, and the same result 
would likely be reached, and we would accomplish no good 
in antagonizing the Commission upon its said ruling. I 
was of a different opinion, and I think Mr. Lathrop was, 
and perhaps Mr. Hagerman, of the M., K. & T. However, 



3 2 4 

when I returned, I advised onr General Manager to make 
up this report in conformity to this ruling, and about the 
time it had been nearly completed, I received the same 
information that Mr. Cochran speaks of, from Mr. 
Brooks, stating that the Eastern trunk lines were making 
an effort to have the Commission set aside this order re- 
quiring these reports, and to please withhold the sending 
of our reports to the Commission until that matter was 
determined. I acted upon that request, and our report 
for April was, and it is still, withheld. A few days ago 
I wired Mr. Brooks to know the result of that applica- 
tion, and he informed me that the Commission had over- 
ruled the application and refused to set aside their order 
in this respect, but that a bill, for an injunction 
would be filed in New York that week. That telegram 
was received last week. I have it here before me. I asked 
Mr. Brownell if that bill had been filed. He said it had 
not, but would likely be this week. I have spoken to the 
General Manager of our company to withhold his report 
for April until we saw the result of that proposed bill for 
an injunction against the Commission enjoining the en- 
forcement of this ruling' of March 3, 1908. 

That is the status of the Louisville & Nashville Com- 
pany with respect to these reports. 

I quite agree with Mr. Cary on the subject of the want 
of power in the Commission to prescribe rules and inter- 
pret Acts of Congress, so that if the acts of the carriers 
are in conflict therewith, they will be guilty of violating 
the provisions of said Acts, or if they conform to the rules 
of the Commission they will be guiltless. This is a penal 
Act and should be construed strictly. In my opinion, the 
Commission has no power to put an authoritative con- 



325 

struction upon this Act, so that the carriers will be bound 
to act upon that ruling. Of course, we take some risk in 
refusing to comply with these rulings, that is, when we 
do not accept the ruling of the Commission with respect 
to the hours of service that employes are allowed to serve 
under this Act. I believe that the clause which provides 
that the operator shall not serve longer than nine hours 
in towers and offices that are continuously operated night 
and day, means just what it says. When this Act was 
passed, a number of offices of all the railroads of the coun- 
try were kept open incessantly. There was no stopping 
of the service. They were kept open the year round. 
There was always some one on duty, and that class of 
offices was contemplated by the Act, in my opinion. And 
so long as the carrier does not maintain an office of that 
kind, where the operators are on duty for the whole 
twenty-four hours, without cessation and without closing 
the office, it seems to me it is not violating this law 
by keeping two operators there that do perform service 
longer than nine hours, but not for the whole twenty-four 
hour period. In other words, to keep open twenty-two 
hours where each of two operators is on duty eleven 
hours, I do not believe is a violation of this law. This 
Act, as already stated, must be construed strictly, as all 
such penal acts should be. 

Mr. Cary: Suppose in any discussion of that kind 
it has been proved that the particular office had been run 
not for twenty-four hours, but it was shown it was run 
for twenty-three hours and closed for one hour: Would 
you say there was any significance in that evidence as to 
an attempt to evade the spirit of the law? 

Chairman Stone : I think not. I think the carrier has 



326 

a right to keep the office open twenty-one hours, or twen- 
ty-two or twenty-three hours; but if he keeps it open 
twenty-four hours, he comes within the purview of this 
statute. I do not think he does, if he does not keep it 
open for that period. 

Mr. Cumming: Recurring to the hours of labor, I 
had occasion to advise our Superintendent upon the line 
on which the Chairman has given his views. When he 
brought the matter to my attention, I told him that I 
thought it was a criminal statute to be strictly construed, 
and that a continuous day and night office meant exactly 
what it said — continuous, open all the time — and if there 
was a substantial closing, that the law would not apply 
then to it as a continuous day and night office. He went 
off, and came back the next day with a schedule showing 
what he proposed to do, showing some offices closed for 
ten minutes, some for fifteen minutes and some for twenty 
minutes. I told him I did not think that was a substantial 
closing of that office, but that the office was still substan- 
tially a day and night office, and I explained more thor- 
oughly, and after a period he came back with a new sched- 
ule which, I said, I thought complied with the law. He 
explained to me how he had accomplished it. Take, for 
instance, the station Barnett, at which, at a certain time 
in the late afternoon or evening, there was no train ar- 
riving or departing from, and he could very easily afford 
to let that station stay closed, under ordinary circum- 
stances, an hour and a half, and the operator could leave 
the place and close it up, and get his supper and be sub- 
stantially off duty himself. And the same way in the 
early morning hours. There was an hour or an hour and 
a quarter at the different stations where the operator 



3 2 7 

could go off to breakfast and be off duty and get a rest. 
I told him that I thought that, under the circumstances, 
that was not a continuous day and night office. I know 
he acted on that opinion for some little time, but some of 
these administrative rulings of the Commission came out 
and he seemed to get a little frightened, and came back 
again. He wanted a guarantee that it was all right. I 
said, "I can't guarantee anything of that description. 
That is my view of the proper construction of that Act, 
but I can't, of course, say what the court will finally de- 
cide. If you want to act on perfectly safe lines, you can 
adopt the Commission's rulings; but I am inclined to 
think that with the substantial closing of the omce for an 
hour or an hour and a half, under the circumstances I 
have described, it would not be a violation of the law." 
And I have seen no reason to change that opinion since. 

In reference to these administrative rulings, I take 
the same view that Mr. Cary does. I do not think that 
class of rulings has any binding force or effect. It simply 
puts us on notice of what the Commission's opinion is; 
and if it is sound it stands, and if it is not sound, when 
it goes into court it will be set aside. But it could 
not be used as evidence against us. I think we ought not 
to live up to that ruling. I do not think it would cut any 
figure at all when it came to trial in the courts. 

Mr. Harrison : I am in hopes that your construction 
is right, but I am forced to differ with you on that propo- 
sition. Listening to you, I recall the ruling of an Ala- 
bama judge in a different character of case, but one which, 
to my mind, is similar in its legal bearing to the case be- 
fore us. He charged the jury that "the law abhorred 
subterfuges and mean dodges," and under that ruling 



328 

the jury rendered a verdict in my favor in that case. 
Applying this principle to the proposed action, it occurs 
to me that it would likely be held by the courts to be a 
subterfuge. If this had been an office running for twenty- 
four hours, such as was in the contemplation of Congress 
at the time the Law was passed, and it was changed to 
twenty-two hours or twenty-three hours, would it not be 
a subterfuge! I should be afraid to risk it. If it was 
for twenty or twenty-one hours, I agree with you that it 
does not come within the purview of the law; but to 
change it for that purpose, it looks to me like a subter- 
i fuge, and we could not afford to risk it. 

Chairman Stone: This matter has not been consid- 
ered as fully at this session as I would like. We have 
not the time to go into it further. I think it well enough 
to have the committee appointed to further consider the 
questions involved in this Hours of Service Law, and also 
in the Safety Appliance Acts, which are on our program 
for discussion. I believe Mr. Trabue made a motion to 
have a committee appointed to take those subjects into 
consideration, and also to consider some questions which 
he himself presented. 

Mr. Helm: Your motion contemplates two different 
committees, one for each subject, does it? 

Mr. Trabue: It. is difficult for one committee to con- 
sider all those subjects. I presume the Chair would re- 
call whether or not some one else made a motion to divide 
the subject. The propositions covered by my motion were 
those you have mentioned, and also the question of valued 
bills of lading, the question whether or not the Act en- 
forcing liability upon the initial carrier, for the acts of 
the succeeding carrier, was constitutional, and the ques- 
tion of the application of the Hepburn Bill to demurrage. 



329 

Mr. Helm : Did you make a motion that a committee 
be appointed! 

Mr. Trabue: I made a motion for a committee to 
consider those subjects, and it was seconded. T did not 
ask for any particular number. 

Chairman Stone: Does that embrace the subject of 
this Hours of Service Law? 

Mr. Trabue: Yes. 

Chairman Stone: And reports are required by the 
committee ? 

Mr. Trabue: Yes. 

Chairman Stone : All those subjects are to go to one 
committee? 

Mr. Trabue: All those subjects, save the Employers' 
Liabilitv Act, was the scope of my motion. 

Chairman Stone : How many members did you sug- 
gest? 

Mr. Trabue: I didn't mention any number. You can 
fix that. 

Chairman Stone : You have heard the motion of Mr. 
Trabue to have a committee appointed to consider these 
several subjects not covered by the Employers ' Liability 
Act, the number of members to constitute the committee 
to be fixed by the Chairman. 

Mr. Harrison: Would it not be well to incorporate 
into that motion a time when this committee shall report, 
or that they shall report at such time, as early as prac- 
ticable, as may be indicated by the Chair? 

Chairman Stone: I think all we could do would be 
to request the committee to report as speedily as prac- 
ticable after giving the matter consideration. • 



33o 

Mr. Harrison: Is the report of the committee to be 
acted on by the Conference, or is their report to be simply 
for general guidance? Colonel Helm's idea was to have 
another meeting to act on it. Is it the idea now to have 
the committee make a report? 

Mr. Helm: I think it would be just as effective to 
let the committee do the work. 

Mr. Harrison : I just wanted to understand. 

The motion of Mr. Trabue was agreed to. 

Chairman Stone: I think it would be well to have 
seven on that committee, if not more. There are a great 
many questions involved. They would want to appoint 
sub-committees. Perhaps nine would be better. I will 
make up a list and notify those appointed as soon as I 
can. 

Mr. Neville: Owing to the importance of the ques- 
tions that will come before that committee, do you not 
think it would be a good idea to throw out the suggestion 
in the Conference to have that committee report to the 
Chairman when it shall have concluded its deliberations, 
and have the Chairman of this Conference call another 
meeting of General Counsel, to consider the report of the 
committee ? 

Chairman Stone: Do you make a motion to that 
effect? 

Mr. Neville : Yes. 

The motion of Mr. Neville was agreed to. 

Chairman Stone : To that committee will be referred 
also this circular letter of the Chairman of the General 
Managers Association of the Southeast, dated June 30, 
1908, and, as Mr. Trabue will be the chairman of that com- 
mittee, when appointed, I will call his attention to that 



33i 

circular as one of the matters to be considered and re- 
ported on. 

Now, gentlemen, one matter I want to settle before 
we adjourn, and that is as to the publication of the pro- 
ceedings of our Conference. I would like to have the 
views of those present on that subject, and I would also 
like to have their views with regard to the method of 
paying the expenses of our stenographer and the publica- 
tion of the proceedings. Shall it be determined that they 
shall be published? 

Mr. Hamilton : I move that the proceedings be pub- 
lished as quickly as possible. I think we all need a re- 
port of the proceedings of this Conference to help us, 
even before the committees can report. I would suggest 
in that connection that the report be more or less guarded 
and carefully taken care of by the gentlemen to whom it 
is sent, just as was done with respect to the meeting held 
here two years ago, that was called by Judge Baxter. In 
other words, I do not see any special good to come from 
putting the proceedings of this meeting in the hands of 
opponents, though, if it should get out, I do not know 
that it would do any harm. I do not know what was the 
method of payment two years ago, but I suggest that 
whatever that method was, it be adopted now. 

Chairman Stone: I will suggest this for the infor- 
mation of the gentlemen present. The stenographer, our 
secretary, has suggested that he will get these proceed- 
ings in typewritten form within ten days or two weeks. 
He has some other duties to perform which will interfere, 
or else he could get them out sooner. When he does so, 
it will be in rough form, and there may be some correc- 
tions to be made, and it is his purpose to send to each of 
the attorneys who have entered upon these discussions, a 



332 

copy of so much of the proceedings as cover his remarks, 
in order that he may revise them, add anything to them 
that he deems proper, and correct any mistakes, and 
promptly send them back to him. When that shall have 
been done, he will then get out a full, corrected copy of 
the proceedings, so that it may be handed to the printer, 
and I suppose that within three weeks we ought to have 
this revised copy in the hands of the printer, and it will 
not take long to print the proceedings after that is done. 

The way we paid for the expenses of a similar Con- 
ference to this on the former Employers' Liability Act, 
held in Louisville in September, 1906, was to have each 
counsel who desired copies of these proceedings to give 
notice to the Chairman of the Conference of the number, 
and let each company pay the proportion of the total ex- 
penses which the number of copies taken by his company 
bore to the entire number. We thought that a fair way 
of having the matter disposed of. It turned out not to 
be. A number of the large companies took one copy and 
a number of the smaller companies took quite a number, 
and so the expenses were borne in a manner, it seemed 
to me, that was disproportionate to the respective inter- 
ests of the companies involved. 

If there is any better suggestion about the manner in 
which this expense can be borne, I should like to hear it. 
It seems to me the companies that have been here repre- 
sented might primarily consider themselves liable equally 
for this expense, and if the expense can be covered by 
sending out copies to other companies, or to general coun- 
sel of other companies that desire these proceedings, it 
will go to the reduction of the total expense. If there 
are any practical suggestions along that line, I would like 



333 

to have them, for I looked over these proceedings before, 
and I know what a job it is to get them in satisfactory 
form and have the expenses paid and have the company 
that does the paying reimbursed. 

Mr. Harrison : We ought to fix it by what we believe 
to be fair. I think a division of the costs on the basis of 
the number of miles would be the correct one. I think 
that is the custom among the managers, and I would make 
that motion, that is, that the proportion to each road be 
according to the mileage of such road. 

Chairman Stone: The stenographer's expenses and 
the printing would not, maybe, exceed $1,000, even if you 
print a thousand copies. I do not know what the stenog- 
rapher's charges will be ; but when you go to prorate that 
sum according to the mileage or gross earnings of all the 
companies interested in these proceedings, it will be al- 
most as difficult as that algebraic problem presented day 
before yesterday afternoon by Mr. Lindley. 

Mr. Helm: I represent one of the relatively small 
roads. I want to suggest, in line with the suggestion 
made just now, that this is relatively such a small amount 
to dispose of, that I do not think, with reference to this 
discussion, that the game is worth the candle. I do not 
think we ought to consider the question of dividing upon 
the basis of mileage or tonnage. Let the gross amount 
of expenses be borne equally among the companies. It is 
a small matter. This is so small that each company ought 
to pay the proportion that it bears to the total number in 
this Conference, and never give the expense item a second 
thought. 

Mr. Hamilton : There is this to be said. A road with 
a great many counsel who could have a copy of these 



334 

proceedings put into their hands for consideration, will, 
in a great many cases, require a great many more copies 
than a road which has a small mileage and a small busi- 
ness. Whilst I think the amount involved will be rela- 
tively small, still I do not think it is exactly right that a 
road which wants twenty-five or thirty copies should pay 
no more than a road that wants but one or two. If I 
want twenty-five, I think I ought to pay more than a road 
that requires no more than three copies. 

Mr. Helm: We want the people interested in the 
movement to have all the benefit out of it that they can 
possibly get. But the amount is so small, and we will all 
be benefited by a general understanding of railroad law- 
yers, that it seems to me the best way will be to distribute 
it among the railroad lawyers who would profit by it, be- 
cause the general cause would be benefited. 

Chairman Stone : My recollection is that we had five 
hundred copies printed of the report of the Conference in 
Louisville over the Employers' Liability Act, and the cost 
of the stenographer's work and the printing made each 
copy cost seventy cents, or $350 for the total expense. 
Perhaps that number of copies would not be enough for 
the proceedings of this Conference. 

Mr. Neville : Without any reference to what it would 
cost, and in view of the fact that I represent about the 
smallest line here, and in view of the further fact that 
after hearing your statement and those of Mr. Cary and 
Judge Cochran, it looks as if I am the only scapegoat that 
has been made in this matter of reports, your failure to 
make them not having been taken notice of and mine 
having been, I move we just divide up the expense equally 
among the roads present. 



335 

The motion of Mr. Neville was agreed to. 

Chairman Stone : I will say to those present with ref- 
erence to the disposition of these copies, that I would like 
to know the number you would like to have printed, be- 
cause that will have to be determined. If there is any- 
thing realized over the actual expense, that fund will have 
to be distributed in the same manner as the original fund 
is raised — equally among all the companies. 

Mr. Galvin: I move that a thousand copies of this 
report be printed, and that a certain number, ten copies, 
be sent to each road represented, as paying the cost; that 
whatever road desires any number greater than ten shall 
pay a certain fixed sum for each copy ; and that that road 
shall pay for the additional copies, and the fund so de- 
rived from the sale of the additional copies shall be put 
in a fund to pay the expenses of the various committees, 
in getting up their reports, that were appointed for the 
ends growing out of the purposes of this Conference. 

Chairman Stone : You mean not only the companies 
here represented, but the outside companies who want 
copies. 

Mr. Galvin: Yes. 

The motion of Mr. Galvin was agreed to. 

Mr. Galvin: I desire to move that if the secretary 
does not receive the copy back within ten days, he go 
ahead and put the matter as he has it, in the printed 
record. 

The motion of Mr. Galvin was agreed to. 

Mr. Cochran: You will pardon me for again rising 
to my feet. I simply want to say to the Conference that 
the committee appointed for the purpose of effecting a 
permanent organization, held a meeting, three members 



33$ 

of the committee being present, and had a very brief dis- 
cussion of the matter, in an adjoining room, while this 
meeting was going on. It was agreed, and I was in- 
structed to say so to the Conference, that it would not be 
practicable to make any report on the subject of organiza- 
tion at this Conference. 

We all recognize the great importance of effecting the 
right kind of an organization, and it is the belief of the 
three members, as it will be, I know, of the entire com- 
mittee, and as it will be of yourselves, that we should 
have a permanent organization on lines carefully thought 
out and after the most careful consideration. 

I was requested by the committee to say to all the 
gentlemen present that they would be delighted to have 
any suggestions on the subject of organization, in writing. 
We will welcome any suggestion that any of the gentle- 
men of the Conference may desire to make on the subject. 
If addressed to the chairman of the committee, at St. 
Louis, they will be promptly communicated to the others 
on the committee and will be carefully considered in con- 
nection with the general subject. 

We intend to have a meeting of the committee just as 
soon as it can be arranged and will take the matter up 
and reach a conclusion. 

Mr. Carter: May I not request, in the presence of 
Judge Cochran, so that adverse opinion, if any, may be 
expressed at this time, that the organization may be on 
such lines that attorneys living in Washington City, and 
representing there railway companies whose lines do not 
run to that city, may be members! 

Mr. Cochran: I will remember that. 

Chairman Stone: There has been some suggestion 



337 

that we have another meeting, or an adjourned confer- 
ence, to consider these reports when they come in. I 
should like to know the views of those present on that 
point. I should like to know whether it is deemed best 
to call into session again the attorneys who are inter- 
ested in these subjects, at some time after these reports 
have been formulated and made ready for distribution 
or action by another conference; and, furthermore, I 
should like to know the views of those who are present 
here, that is, of the members of this committee that has 
under consideration the subjects growing out of this Em- 
ployers' Liability Act, when that committee ought to be 
called together and how soon we shall begin the work, 
and the desirability of undertaking the making of the re- 
port during the summer months, or waiting until in the 
autumn. I know how inconvenient it is for counsel, who 
get little enough vacation, to do work of this kind in the 
summer months, and I also recognize the importance of 
having this work done as speedily as possible. If it is 
to be of any service to us, we want it out as promptly as 
it can be done. 

I should like to have an expression of views, first, as 
to whether there shall be a second session of this Con- 
ference, to consider these reports, when called by the 
Chairman, or, second, whether we shall take the reports 
as they are made by the committees and let them go out 
among the attorneys interested, without such a second 
conference; and I should also like to have an expression 
of their views by the members of the committee having 
this Employers' Liability Act to consider, about when 
that work shall be begun. 

Mr. Cary : I think the further we go into the summer 



33* 

the more difficult it is going to be to get anybody to meet. 
I think it would be rather impracticable to have another 
meeting of counsel this summer. It seems to me that we 
will not be able to get many people together in August, 
and I therefore think that it would be inadvisable to at- 
tempt to have an adjourned meeting here with regard to 
the questions which shall come before the committee 
which has the Employers' Liability Act under considera- 
tion; I also doubt whether you could get that committee 
of eleven or twelve together before the first of Septem- 
ber; but I think we ought to begin immediately after that 
time. My recollection is we met in Louisville in the fall, 
two years ago. 
■ Mr. Warfield : On September 26 and 27, 1906. 

Chairman Stone : And our report was gotten out on 
the 11th day of the following January. 
= p Mr. Gary : When was the first meeting of our com- 
mittee held — in October some time, was it -not? 

Mr. Warfield : The 20th of November, 1906. 
; Mr. Cary : We had four or five sessions and we gave 
careful attention to the matters we had under considera- 
tion. If we begin in September, we will have two months 
leeway over the previous Conference, and I really think 
if we begin along the middle of September, the fall ought 
to be ample time for the committee to complete its work. 
: Chairman Stone: What is your view as to whether 
there should be a conference called to consider the report 
when it is finished? 

Mr. Cary: I think it would be an excellent thing, 
and I was going to make this suggestion apropos of any 
adjournment of this meeting and as to that conference: 
Would it not be possible for the Committee on Permanent 



339 

Organization to take those matters into consideration- 
and perhaps kill two birds with one stone by bringing 
together the counsel in the permanent organization ; at; 
the time this report is considered! M; 

Mr. Helm: If suggestions are desirable, it occurs /to- 
me that: the first of September is too soon. What we did 
before was to divide the subjects up and have several? 
of the committee to carefully examine the question; .and 
write papers which were submitted to the Conference 
and were more or less edited and changed after a thor- 
ough discussion. I know Judge Humphrey will . spend 
August some place up in the East and Judge Dickinson 
will be at the Bar Association, and it will be nearly the 
first of September before he can get back. I want to 
go to the meeting of that Association myself, which i§ 
to be held in Seattle, and we ought to have a little more 
than two weeks ' time for the consideration of these ques- 
tions. It seems to me we would not make any time by 
having a meeting of the committee before the first of 
October. Perhaps our papers will be better considered 
if we do not have a meeting before the first of October. 

Chairman Stone : I will write to all the members and 
get their views and determine it. 

I wish to say that in the former conference we invited 
contributions or suggestions from any one who chose to 
send them to the chairman of the committee in order 
that they might be considered, and many of them were 
of great help to the committee before they formulated 
their report, and I should like to invite every one here, 
if anything occurs to him when he goes away from this 
Conference, or any one outside of the members that have 
been here in attendance who has a suggestion to make 



34o 

that he thinks will be helpful to this committee ih mak- 
ing up its report on any question growing out of this 
Employers' Liability Act, to send such suggestion to me 
at Louisville and I will see that it is duly considered by 
the committee. 

On motion the Conference then adjourned, subject to 
be reconvened at such time and place as shall be desig- 
nated by the Chairman. 

Henry L. Stone, Chairman. 

G. A. Baumann, Secretary. 



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